



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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)    REPEALED: S.C. 2014,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    identify the victim shall not be published in any document or broadcast or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. R.S., 2016 ONCA 655

DATE: 20160907

DOCKET: C59275

Doherty, van Rensburg and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

Ian Carter, for the appellant

Roger Pinnock, for the respondent

Heard:  August 18, 2016

On appeal from convictions entered on January 20, 2014 by
    Justice Laliberté of the Superior Court of Justice at Cornwall, Ontario.

Doherty J.A.:


I



overview

[1]

The appellant was charged with:

·

assaulting
    his stepson, M.L. (count 1);

·

touching
    his daughter, M.S., for a sexual purpose (count 2);

·

inviting
    M.S. to touch him for a sexual purpose (count 3);

·

incest
    with M.S. (count 4); and

·

sexually
    assaulting M.S. (count 5).

[2]

The trial judge found the appellant guilty on all five charges, but
    stayed the conviction on count 5 on the basis of the rule in
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.  The trial judge imposed sentences
    totalling five years, three months.

[3]

The appellant appealed his convictions.  He submitted that counsels
    conduct of his defence was so deficient as to render the verdicts a miscarriage
    of justice.  Following this courts Protocol governing ineffective assistance
    of counsel claims, the appellant and trial counsel filed affidavits for the
    purpose of the appeal and were cross-examined on those affidavits.

[4]

Based primarily on the cross-examination of trial counsel, Crown counsel
    on appeal conceded that trial counsel had not provided competent assistance to
    the appellant at trial.  The Crown conceded that the ineffective assistance of
    counsel rendered the convictions in respect of the appellants daughter (counts
    2 to 5) unreliable, necessitating a new trial.  Crown counsel argued, however,
    that the appellants conviction on the charge of assaulting his stepson (count
    1) should stand.  He submitted that counsels incompetence did not undermine
    the reliability of that verdict.

[5]

Counsel for the appellant argued that trial counsels incompetence was pervasive
    and tainted the entire trial proceeding.  He submitted that trial counsels
    incompetence compromised the fairness of the trial and necessitated the
    quashing of all convictions.

[6]

At the end of oral argument, the court allowed the appeal and ordered a
    new trial on all counts.  These are the reasons for that disposition.


II



evidence

[7]

The appellant and D.V. lived together between 1991 and 2003.  M.L., the
    complainant in count 1, was D.V.s son.  He was born in 1990.  M.S., the
    complainant in counts 2 to 5, was the daughter of the appellant and D.V.  She
    was born in 1996.

[8]

M.L. testified that when he was about five or six years of age, he was
    living with the appellant and his mother.  The appellant was disciplining him
    for misconduct at school.  M.L., in an attempt to get away from the appellant,
    ran outside toward his mother who was in the family vehicle.  The appellant
    caught him, slapped him, knocked him to the ground, and kicked him.  According
    to M.L., he suffered bruised ribs and a contusion on his lip.  He went to live
    with his father the next day.

[9]

D.V. testified and described an incident when M.L. was about five or six
    years old.  She saw him running toward her in the van with the appellant in
    pursuit.  She did not see how the appellant caught up to M.L. and she did not
    see the appellant actually punch him.  D.V. saw the appellant making a motion
    as if he wanted to punch M.L. as he lay on the ground.  She intervened and got
    between the two of them.  D.V. put her son in the van and drove away.  Shortly
    afterward, he moved in with his father.

[10]

M.S. described two incidents when she was five or six years old.  The
    first incident occurred at the family home in Alexandria.  She was playing in
    the playroom when the appellant came into the room and told her to follow him. 
    Her mother was not home.  M.S. followed the appellant into a bedroom.  He
    touched her vagina and inserted his fingers into her vagina.  He removed her
    clothing, assuring her that everything would be alright.  He also removed some
    of his clothing.  He instructed her to place her hand on his penis.  She followed
    his instructions.  At one point, there was a noise in the kitchen and the
    appellant went to see what it was.  He returned indicating everything was
    okay.  She put her clothes back on.  M.S. could not say at what time of the
    year this incident occurred or how long it went on.

[11]

The second incident occurred in the same house.  The appellant came into
    the room where M.S. was playing and told her to follow him.  They went into the
    bedroom.  He removed her clothing and his clothing.  He touched her inside and
    outside of her vagina and partially inserted his penis into her vagina.  He
    continually assured her that everything would be okay.  Just as in the first
    incident, he instructed his daughter to place her hand on his penis.  According
    to M.S., this incident ended when her mother arrived home.  The appellant told
    her to hurry up and get dressed and explained to her mother that he was helping
    M.S. get dressed.  M.S. could not say how long the assault took.

[12]

D.V. testified that she was unaware of any sexual misconduct toward any
    of the girls by the appellant.

[13]

M.S. and her sisters were apprehended by the Childrens Aid Society in
    December 2003, after M.S.s teacher noticed bruising on her face and notified
    the authorities.  Over the next six months, M.S. and her sisters made
    allegations that both the appellant and D.V. physically assaulted and threatened
    them on a regular basis.  M.S. did not allege any sexual misconduct by the
    appellant until 2010.  M.S. initially told social workers that her stepbrother,
    M.L., had sexually assaulted her.  When she was interviewed by the police about
    that assault, she told them that the appellant had also sexually assaulted
    her.  At trial, she testified that she did not disclose the appellants sexual
    abuse earlier because she was afraid of him.

[14]

The appellant did not testify.

The Reasons for Judgment

[15]

The trial judge gave detailed reasons.  He accepted M.L.s description
    of the assault and found that it was confirmed in material particulars by the
    evidence of his mother, D.V.  The trial judge reviewed the defence arguments
    and rejected several as speculative and unsupported by any evidence.

[16]

The trial judge found M.S. to be a credible and reliable witness.  He
    gave many reasons for accepting M.S.s evidence.  He also identified and
    addressed the arguments made on behalf of the appellant.  In his reasons, the
    trial judge found that although M.S. had given a videotaped statement to the
    police and testified at the preliminary inquiry, there was no indication she
    contradicted herself in any significant way.  Her consistency was one of the
    factors relied on by the trial judge in his assessment of M.S.s credibility
    and reliability.


III



the ineffective assistance claim

[17]

An accused is constitutionally entitled to effective representation.  Effective
    representation means reasonably competent representation.  Counsels
    performance is measured without the benefit of hindsight and bearing in mind
    that the reasonable exercise of professional judgment will in many instances allow
    for different tactical decisions:
R. v. G.D.B.
, [2000] 1 S.C.R. 520,
    at paras. 27-28.

[18]

Trial counsels performance fell far below the reasonableness standard. 
    I will organize his multiple deficiencies into four categories.  Trial counsel
    failed to adequately prepare for trial; he failed to adequately cross-examine
    the complainant M.S.; he failed to bring a s. 276 application or otherwise
    address the allegation that the stepson, M.L., had sexually assaulted M.S.; and
    he failed to prepare for, or properly respond to, the Crowns application to
    introduce evidence of the appellants discreditable conduct.

(i)

Inadequate trial preparation

[19]

The appellant denied sexually assaulting M.S. from the outset of his
    relationship with trial counsel.  Trial counsel knew that cross-examination of
    the complainants would be crucial to the appellants defence.  However, he did
    not order a transcript of their preliminary inquiry testimony.  He could offer
    no explanation for his failure to take this most rudimentary step in the
    preparation for trial.

[20]

Trial counsel was provided with a CD of M.S.s statement to the police. 
    He watched the CD, but did not have a transcript of her statement prepared or make
    notes that would allow him to locate any particular part of the statement
    should the need arise during the trial.  Counsel acknowledged in his
    cross-examination that he was not in a position to put any part of M.S.s
    statement to her at trial should the need arise.  Counsels inadequate
    preparation effectively rendered M.S.s statement to the police useless as a
    tool in her cross-examination.  There were material inconsistencies between
    that statement and M.S.s testimony.

[21]

Counsel was also aware from materials supplied by the Crown disclosure that
    M.S. had made conflicting statements describing the appellants sexual
    misconduct to one of her foster mothers.  Those statements not only
    contradicted M.S.s testimony, but also described conduct that was arguably so
    bizarre as to render the credibility of the allegation questionable.  Trial
    counsel made no effort to interview the foster mother, or to prepare any
    cross-examination of M.S. based on the alleged statements she had made to her
    foster mother.

[22]

The appellant also provided trial counsel with information indicating
    that a clinical psychologist had prepared a report in 2005 in which he indicated
    that the children, including M.S., had made numerous conflicting statements
    about alleged sexual misconduct.  Trial counsel made no effort to obtain a copy
    of that report or to interview the clinical psychologist.  Had he done so, he
    would have found that the clinical psychologist reported that M.S. had made,
    but then retracted, allegations of sexual abuse at the hands of the appellant. 
    This information may have proved most useful at trial when M.S. testified that
    she first made the allegations of sexual abuse against the appellant in 2010
    because, on her evidence, she was too afraid to make the allegations earlier.

[23]

In the cross-examination on his affidavit, trial counsel acknowledged
    that he had fully anticipated that the appellant would testify.  He counted on that
    testimony to supply a motive for the false allegations.  The appellant had told
    counsel that he believed that the allegations were motivated by his former
    wifes anger in 2010 over the appellants new relationship and the child that
    he and his new partner had.  The appellant decided late in the trial that he
    would not testify.

[24]

The cross-examination of trial counsel demonstrates that he did very
    little to prepare the appellant to testify at his trial.  Trial counsel also
    did nothing to impress upon the appellant the negative consequences of the appellants
    eleventh hour decision not to testify despite the fact that, according to trial
    counsels strategy, the defence was based on the assumption the appellant would
    testify.

[25]

Counsel could offer no explanation for his failures to adequately
    prepare for trial.  Counsels inadequate preparation became apparent in the
    course of the trial.  I turn now to those features of the ineffective
    assistance claim.

(ii)

The inadequate cross-examination of M.S.

[26]

Trial counsel did not suggest to M.S. during her testimony that any
    part of her evidence was inconsistent with her statement to the police or her
    preliminary inquiry evidence.  Appellate counsel assembled an impressive
    catalogue of inconsistencies upon which M.S. could have been cross-examined.  Perhaps
    the most striking comes from M.S.s statement to the police.  In that
    statement, she indicated that her mother came into the room and caught the
    appellant in the act of sexually assaulting M.S.  M.S. told the police that her
    mother had required the appellant to leave the home for two months.  In her
    testimony, M.S. said nothing about her mother coming into the room during the
    assault and nothing about the appellant being forced to leave the home.  Her
    mother, D.V., testified that she knew nothing of the sexual abuse until many years
    later.  Counsel never confronted M.S. with this potentially powerful
    inconsistency.  He had no explanation for failing to do so.

[27]

There were other material inconsistencies.  For example, at trial, M.S.
    testified that the appellant put his penis into her vagina during the second
    sexual assault.  In her statement, she indicated she could not recall whether
    he did so.  Once again, trial counsel had no explanation for failing to
    cross-examine M.S. on those inconsistencies.  On the record before this court,
    it is clear that because of his inadequate preparation, trial counsel was not
    in a position to readily locate the relevant parts of M.S.s statement to the
    police so that he could effectively use them in cross-examination.

[28]

M.S.s statement to the police and her evidence at the preliminary
    inquiry were not the only potential sources of prior inconsistent statements
    which could have been used in the cross-examination of M.S.  As indicated
    above, M.S. told her foster mother that the appellant had sexually assaulted
    her.  She described assaults that were, however, very different from the
    assaults she described in her testimony.  Trial counsel made no effort to
    confront M.S. with those different and somewhat bizarre allegations she had
    made to her foster mother.

[29]

Trial counsel was also in possession of a series of instant messages that
    had been sent by M.S. to her cousin in 2011, about six months after M.S.s
    initial disclosure to the police.  In those statements, M.S. denied that the
    appellant put his penis in her vagina.  At trial, she insisted that he did.  Trial
    counsel could offer no explanation for failing to put this inconsistency to M.S.

[30]

Cross-examination of complainants in sexual assault cases on prior
    inconsistent statements, especially in cases involving allegations of
    historical sexual assaults, calls for the exercise of professional judgment. 
    Different counsel may have different views of how and when to cross-examine a
    complainant on a prior inconsistent statement.  Trial counsels failure to
    cross-examine M.S., however, was not the product of any judgment he made.  As
    he repeatedly acknowledged in his cross-examination, his failure to challenge
    M.S. on her prior statements was a result of his oversight of the existence
    of the relevant inconsistencies.

(iii)

The failure to bring a s. 276 application

[31]

Trial counsel knew from the disclosure that M.S. had initially alleged
    that her stepbrother, M.L., had sexually assaulted her.  She did not mention
    the appellant in her initial disclosure.  It was only when she was giving her
    statement to the police about her stepbrothers abuse that she told the police
    that the appellant had also sexually assaulted her.

[32]

Trial counsel also knew from the copies of the instant messages between
    M.S. and her cousin that M.S. had initially told her cousin in 2011 that her
    stepbrother had put his penis in her vagina, but her father had not.

[33]

The material provided to trial counsel forged a clear link between
    M.S.s allegation against the appellant and her statements that she was abused
    by her stepbrother.  Some of the details of the two allegations seemed
    interchangeable in M.S.s different statements.  Clearly, a proper defence of
    the appellant required an inquiry into M.S.s statements about her
    stepbrothers assaults on her.

[34]

Trial counsel seemed to appreciate the need to question M.S. about the
    allegations she made against her stepbrother.  At the preliminary inquiry, he
    attempted to cross-examine her about her activities with her stepbrother.  The
    Crown objected to the question on the basis that no application under s. 276 of
    the
Criminal Code
had been made on behalf of the accused.  Section 276
    requires that before evidence can be adduced of sexual activity other than the
    activity alleged in the charge, counsel must apply for and obtain an order
    permitting the eliciting of that evidence.  Immediately after the Crown made its
    objection, trial counsel abandoned this line of questioning without making any
    submissions as to the applicability of s. 276.

[35]

The applicability of s. 276 arose again in the pretrial conference.  The
    notes of that conference indicate that although the defence was alleging sexual
    abuse by the stepbrother, trial counsel did not contemplate a s. 276 motion. 
    According to the pretrial notes, trial counsel thought that he could cover the
    matter in cross-examination of M.S.

[36]

At trial, counsel attempted to cross-examine M.S. about the sexual
    activity with her stepbrother.  Once again, the Crown objected on the basis
    that no s. 276 application had been made.  Trial counsel made no argument to
    support the position that he could cross-examine M.S. despite not having
    brought a s. 276 application.  Instead, as he had done at the preliminary
    inquiry, trial counsel abandoned that line of questioning.  M.S. was never
    questioned about the allegations involving her stepbrother.

[37]

In his cross-examination, trial counsel could offer no explanation for his
    failure to bring a s. 276 application.  Initially, he said he did not think he
    needed to bring one, but he could offer no explanation for simply abandoning
    the line of questioning when the Crown objected, instead of arguing that he was
    not obligated to bring the application.

[38]

Trial counsel had nothing in his file relating to the operation of s.
    276 and had never brought a s. 276 application before.  There is good reason to
    believe that trial counsel did not understand how the section worked and
    believed that it did not apply to cross-examination of the complainant.

(iv)

The failure to challenge the Crowns application to adduce evidence of
    other discreditable conduct

[39]

Prior to trial, the Crown served notice that it proposed to introduce
    evidence that the appellant and his wife had assaulted and threatened their
    children, including M.S., while they were living together as a family.  The
    Crown offered the evidence, both to show animus toward M.S. and to offer an
    explanation for her failure to complain about the appellants alleged sexual
    abuse until many years later.

[40]

The parties agreed that argument on the admissibility of the evidence
    would be made in writing prior to trial.  The trial judge fixed a schedule for
    the filing of the relevant material.  The Crown filed its application, factum
    and case law according to the schedule set by the trial judge.  Trial counsel
    did not file any responding material by the date set for the filing of that
    material.

[41]

At the hearing of the motion to admit the evidence, trial counsel told
    the court that he had failed to properly diarize the date for the filing of
    material and had only realized about a week earlier that he had missed the deadline. 
    Trial counsel had no explanation for failing to file anything in the
    intervening week.  The trial judge allowed counsel to make oral submissions in
    response to the Crowns motion.  Those submissions lacked both focus and
    cogency.

[42]

On his cross-examination, trial counsel once again admitted that his
    failure to file any material on the Crowns motion was an oversight.  He had
    intended to oppose the application.  He also acknowledged that he had nothing
    in his file to suggest he had done anything by way of preparation for his oral
    submissions in response to the Crowns motion.

[43]

Trial counsels abject failure to adequately represent his clients
    interests on the Crowns motion to lead evidence of discreditable conduct is
    mitigated somewhat by the fact that there was in all likelihood little that any
    counsel could have done to exclude the proffered evidence.  The evidence had
    significant probative value.  What is important, however, for the purposes of
    this appeal is that counsels conduct was not the product of any consideration
    of the merits of the Crowns motion.  Trial counsel did not file material
    because he determined that the Crowns motion would inevitably succeed.  Trial
    counsel simply failed to take any steps to protect or present his clients position
    on the motion despite his belief that the motion should be opposed.

What order should the court make?

[44]

If an accused who receives ineffective representation at trial is
    convicted, the conviction must be quashed if the result is properly
    characterized as a miscarriage of justice.  A miscarriage of justice occurs if
    the ineffective representation sufficiently undermines the reliability of the verdict,
    or results in an unfair trial.  The reliability of a verdict is sufficiently undermined
    if the appeal court concludes that there is a reasonable probability that the
    verdict would have been different had the appellant received adequate legal
    representation:  see
R. v. Prebtani
, 2008 ONCA 735, at para. 4;
R.
    v. Joanisse
, [1995] O.J. No. 2883, at paras. 74-80 (C.A.), leave to appeal
    to SCC refused, [1996] S.C.C.A. No. 347.

[45]

Mr. Pinnock conceded on the appeal that there was a reasonable
    probability that the verdicts on the charges involving M.S. would have been
    different had the appellant received proper legal representation.  The record
    fully justifies, indeed compels, the concession made by the Crown.  The
    potential negative impact of trial counsels inadequate representation of the
    appellant on the reliability of the convictions involving M.S. is
    self-evident.  In light of Crown counsels concession, I need say no more about
    the convictions on those counts.

[46]

Crown counsel submits, however, that it cannot be said that counsels
    ineffective representation probably affected the outcome on the assault charge
    involving the stepson, M.L.  I agree with Crown counsel that many of trial counsels
    deficiencies had a more direct and significant impact on the defence of the
    charges involving M.S. than on the defence of the charge involving M.L.  I also
    agree with Crown counsel that M.L.s allegation was confirmed to a significant
    degree by the evidence of his mother, D.V.  In that sense, the Crowns case on
    the charge involving M.L. was stronger than its case on the charges involving
    M.S.

[47]

However, while I acknowledge the merits of the Crowns attempt to
    distinguish among the charges, I ultimately agree with Mr. Carters cogent submission
    that trial counsels ineffective representation taints all of the convictions. 
    Mr. Carter characterizes the effect of counsels ineffective representation as
    pervasive.  I agree with that description, which I think is particularly apt
    in respect of trial counsels purported preparation for trial.

[48]

For all practical purposes, the appellant was without the assistance of
    counsel at trial.  The miscarriage of justice occasioned by the ineffective
    representation lies not only in its impact on the reliability of the verdicts,
    but also in its negative effect on the appearance of the fairness of the
    trial.  The latter concern can be adequately vindicated only by an order quashing
    all of the convictions.


IV



conclusion

[49]

The appeal is allowed, the convictions are quashed and a new trial is
    ordered on all counts, including the count on which the conviction was stayed
    under the rule in
Kienapple
.

Released: DD  SEP 07 2016

Doherty J.A.

I agree K. van
    Rensburg J.A.

I agree L.B. Roberts
    J.A.


