



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baylis, 2015 ONCA 477

DATE: 20150629

DOCKET:
C52256

Doherty, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robbie Baylis

Appellant

Robbie Baylis, acting in person

Russell Silverstein, for the appellant

David Friesen, for the respondent

Heard: May 21, 2015

On appeal from convictions entered on August 27, 2008, by
    Justice P.H. Marjoh Agro of the Ontario Court of Justice.

Doherty J.A.:


I



OVERVIEW

[1]

The appellant, Robbie Baylis, was convicted on his pleas of guilty to
    two counts of possession of a restricted firearm with ammunition. He received a
    total sentence of two years. The appellant initially appealed conviction and
    sentence, but he has since completed his sentence and abandoned his sentence
    appeal. On the conviction appeal, the appellant asks the court to set aside the
    guilty pleas, quash the convictions and order a new trial.

[2]

The appellant is self-represented on the appeal. Mr. Silverstein was
    appointed under s. 684 of the
Criminal Code
, R.S.C., 1985, c. C-46,

to
    assist the appellant in advancing a claim of ineffective representation at
    trial. Mr. Silverstein provided that assistance with his usual skill. The court
    is indebted to him for his efforts. The court also received submissions from
    the appellant.

[3]

The appellants arguments come down to two essential claims. First, he
    submits that the trial judge erred in law in failing to set aside the his guilty
    pleas on the application brought after conviction, but prior to sentencing. The
    appellant submits that the evidence adduced on that application shows both that
    he did not receive adequate legal advice before entering his plea, and that he
    did not understand the nature or consequences of the plea. Second, the appellant
    argues that he did not receive proper assistance from counsel on the
    application to set aside his plea. The appellant relies, not only on the trial
    record, but also on additional evidence filed on appeal in support of this
    argument. For the reasons that follow, I would dismiss the appeal.


II



PROCEDURAL HISTORY

[4]

The appellants arguments require a detailed review of the proceedings at
    trial and in this court.

The Charges

[5]

The appellant was charged in November 2007 with seven firearms offences.
    The charges arose out of a search of a home where, according to the Crown, the
    appellant lived with his mother. The search produced a loaded .30 calibre rifle
    and a .45 calibre revolver with readily accessible ammunition. The search was
    the by-product of a broader narcotics-related investigation. Both firearms were
    found in the mothers bedroom.

[6]

The appellant retained Mr. Barry Caskie shortly after the arrest. Mr.
    Caskie was an experienced and well-known criminal lawyer in Hamilton. He had
    known the appellant for several years and had represented him on two prior occasions.
    On both occasions, the charges had been withdrawn against the appellant.

[7]

Mr. Caskie secured the appellants release on bail, pending trial. He appeared
    for the appellant on the charges on several occasions. A judicial pretrial was
    held in May 2008. The Crown and Mr. Caskie discussed the possibility of guilty pleas
    on some of the charges. Mr. Caskie was aware of wiretaps that implicated the
    appellant in the possession and transfer of a third firearm. The appellant had
    not been charged in relation to that incident, but Mr. Caskie was concerned
    that he could be charged. Mr. Caskie regarded the charges that might arise out
    of that incident as potentially more serious than the charges faced by the
    appellant as a result of the seizure of the firearms in his home.

[8]

Eventually, Mr. Caskie and the Crown agreed that the appellant would
    plead guilty to two of the seven charges. The Crown would request a three-year
    sentence and Mr. Caskie would agree that a penitentiary sentence was necessary,
    but would argue for something less than three years. The other charges would be
    withdrawn and there would be no additional charges against the appellant.

The Guilty Pleas

[9]

On August 27, 2008, the appellant pled guilty to possessing a .45
    calibre revolver with readily accessible ammunition and possessing a loaded .30
    calibre rifle. His guilty pleas were unequivocal.

[10]

The
    trial judge was provided with an Agreed Statement of Facts. A description of
    the two seized firearms appears in para. 1, which goes on to state:

Although Mr. Baylis was not home at the time the search warrant
    was executed, he was in possession of both guns. He had no licence to possess
    either firearm.

[11]

The
    rest of the Agreed Statement of Facts explains how the police came to search
    the Baylis home and implicated the appellant in other gun-related activity.

[12]

The
    trial judge inquired as to whether Mr. Caskie had reviewed the provisions of s.
    606(1.1) of the
Criminal Code
with the appellant. Those provisions set
    out the prerequisites for a valid guilty plea. Mr. Caskie advised the trial
    judge that he had reviewed those requirements with the appellant. The trial
    judge did not conduct any further inquiry into the s. 606(1.1) requirements.

[13]

Mr.
    Caskie advised the court of the range of sentence he and the Crown had
    discussed. He also requested a presentence report and alerted the judge to
    certain issues that might arise on sentencing. Finally, Mr. Caskie indicated
    that the appellants girlfriend was expecting a baby and he asked that the
    trial judge adjourn the sentencing for five months until late January 2009. The
    Crown agreed. The trial judge accepted the guilty pleas, entered convictions
    and adjourned sentencing until January 29, 2009.

The Pre-Sentence Report

[14]

At
    some time prior to January 29, 2009, the appellant met with the probation
    officer charged with preparing the presentence report. According to the report,
    the appellant cooperated fully in its preparation. The report contained all of
    the information routinely provided in preparation for sentencing. The probation
    officer did not suggest in her report that the appellant was under any
    misunderstanding as to the nature of the proceedings or the pending sentencing
    hearing.

[15]

The
    presentence report was largely favourable to the appellant. The report
    described the appellants various medical problems experienced as a result of sports-related
    head trauma suffered as a teenager and young adult, including depression,
    anxiety and chronic pain. The report also indicated that the appellant had
    difficulty controlling his temper. The appellant seemed to appreciate that he
    had problems and indicated a willingness to take part in counselling.

[16]

The
    presentence report referred to an interview with Dr. DeRubeis, the appellants
    family physician. Dr. DeRubeis described the appellants various medical problems
    and his medication regime. Dr. DeRubeis had referred the appellant to a
    neurologist in 2002, but the neurologist could not provide a definite
    diagnosis. Dr. DeRubeis also told the probation officer that the appellant could
    have difficulty controlling his emotions and could, on occasion, act
    aggressively towards others. He had apparently been raised in a negative home
    environment.

Adjournment of Sentencing Date

[17]

The
    appellants sentencing did not proceed as scheduled on January 29, 2009. Mr.
    Caskie advised the trial judge that a problem had developed and he needed a
    brief adjournment to speak to his client. Mr. Caskie did not go into any
    details with the trial judge on January 29. In the later proceeding to set
    aside the guilty plea, Mr. Caskie testified that the appellant was in extreme
    emotional distress on January 29 and was acting in an aggressive and
    intimidating manner. Mr. Caskie was concerned, in light of the appellants
    conduct on January 29 and the description of his ongoing medical problems set
    out in the presentence report. The presentence report described medical and emotional
    problems that were more significant than Mr. Caskie had believed based on his
    prior dealings with the appellant. The trial judge granted an adjournment to
    February 5, 2009.

[18]

Mr.
    Caskie did not see the appellant between January 29 and February 5. When the
    appellant came to court on February 5, he was still agitated. It was apparent
    that the client/solicitor relationship between the appellant and Mr. Caskie had
    broken down. Mr. Caskie was removed from the record and the matter was
    adjourned.

The Application to Set Aside the Guilty Pleas

[19]

The
    appellant retained Mr. Steven Howarth to bring an application to set aside his
    guilty pleas. Mr. Howarth is also a senior criminal counsel in the Hamilton
    area. Mr. Howarth brought the application seeking to set aside the plea on the
    basis that the appellant, did not fully appreciate the consequences of
    entering his plea of guilty as a result of moderate to severe social phobia.

[20]

Mr.
    Howarth did not question Mr. Caskies representation of the appellant in the
    material he filed in support of the application. In fact, in his own affidavit
    filed on the application, and in a draft affidavit prepared in the appellants
    name but never signed by him, Mr. Howarth disavowed any allegation of
    ineffective assistance.

[21]

In
    support of the application, and in addition to the affidavits referred to
    above, counsel filed a letter from Dr. DeRubeis, in which he wrote:

Mr. Baylis essentially has a moderately severe Social Phobia. He
    is on medications for the above in an attempt to help his difficulties.

[22]

In
    his letter, Dr. DeRubeis described the appellant as having difficulty
    generating coherent thoughts and appropriate responses. He referred to the
    appellant as being easily confused and unable to express himself appropriately
    when under social pressure. Mr. Howarth advised the court that he had spoken to
    Dr. DeRubeis, who did not feel qualified to give any opinion as to the
    appellants ability to understand the consequences of his guilty pleas.

The Appellants Evidence on the Application

[23]

The
    application to strike the guilty plea eventually proceeded on August 21, 2009. The
    appellant testified. He indicated that he had been under the care of a
    psychiatrist from June 2002 to December 2004, some three and one-half years
    before he entered his guilty plea. He also outlined the medication he was
    taking at the time of his plea.

[24]

In
    his examination-in-chief, the appellant testified that he did not understand
    anything about the guilty plea proceedings on August 27, 2008. According to
    him, in saying the word guilty, he was simply accepting that he would contest
    the charges, rather than have his mother arrested and charged with the same offences.

[25]

Very
    early in the Crowns cross-examination, the appellant made it clear that Mr.
    Caskie had not explained anything to him about the proceedings or the meaning
    of a guilty plea. The appellant testified that he thought he would have a preliminary
    inquiry and then a trial. In his cross-examination, he also alleged that Mr.
    Caskie had pressured him to plead guilty, telling him that because the guns
    were found in his mothers bedroom, either the appellant or his mother would
    have to take responsibility for the guns. The appellant repeated his assertion
    that he had no idea that in pleading guilty he was taking criminal responsibility
    for possession of the guns. According to his evidence, he thought he was only
    agreeing to be tried on those charges.

[26]

During
    the appellants cross-examination, the Crown sought clarification of the
    defence position on the application to set aside the plea. The Crown pointed
    out that, while the material filed on the application expressly disavowed any
    allegation of ineffective representation, the appellant was clearly alleging
    that he did not receive adequate legal assistance from Mr. Caskie.

[27]

Mr.
    Howarth interjected:

I might be able to assist my friend [Crown counsel]. I am not
    going to be raising the issue that Mr. Caskie was ineffective in explaining the
    matters to my client. My sole argument is, is that because of mental conditions
    that he suffers and social phobia that he suffers, and now hes come before the
    court, that he didnt understand.

[28]

The
    trial judge replied:

The difficulty that the Crown faces is that your client has
    raised it.

[29]

After
    further discussion, the Crown requested an adjournment so that he could speak
    to Mr. Caskie and perhaps call him as a witness in the application. The trial
    judge acceded to the request and adjourned the application.

Mr. Caskies Evidence on the Application

[30]

On
    November 26, 2009, the appellant completed his testimony and Mr. Caskie
    testified. He was examined in-chief by the Crown and cross-examined briefly by Mr.
    Howarth.

[31]

Initially,
    Mr. Howarth argued that Mr. Caskie should not be allowed to testify about his
    discussions with the appellant, as those discussions were protected by solicitor-client
    privilege. The trial judge ruled that the appellant had waived that privilege
    when he testified about the content of those discussions.

[32]

Mr.
    Caskie testified that he had two meetings with the appellant before the appellant
    entered his guilty pleas in August 2008. They discussed the nature of the
    charges. The appellant told Mr. Caskie that the guns belonged to his father who
    had died several years before the police search. Mr. Caskie explained the legal
    meaning of possession to the appellant and, according to Mr. Caskie, the appellant
    no longer suggested that he was not in possession of the guns.

[33]

Mr.
    Caskie indicated that at some point, he and the appellant discussed the
    possibility of guilty pleas to some of the charges. The appellant knew he would
    be going to the penitentiary if he pled guilty. He also knew that there were
    other serious charges that might be laid against him if he did not plead
    guilty.

[34]

Mr.
    Caskie testified that the appellant was not happy about it, but decided to
    plead guilty. He later asked Mr. Caskie to request a lengthy adjournment so he
    would not be in jail when his child was born. During these discussions, the
    appellant also told Mr. Caskie about his prior football-related injuries and
    some of the cognitive and emotional difficulties he suffered as a result of
    those injuries.

[35]

Mr.
    Caskie acknowledged that he spoke firmly with the appellant about the
    likelihood that he would be convicted. He told the appellant that it was in his
    best interest to accept the plea bargain. Mr. Caskie testified:

You have to be firm especially
    in serious matters like this. I was firm with him. I never told him he had to
    do this. I told him it was in his best interest to do this. I guess it depends
    upon whos doing the talking, what their relationship is, whether its pressure
    or not.

[36]

Mr.
    Caskie acknowledged that in the course of discussing the charges with the
    appellant, he asked the appellant whether he would take the position that the
    guns belonged to his mother. The appellants mother had testified on the
    appellants bail hearing and denied any knowledge of the guns. Mr. Caskie denied
    ever telling the appellant that if he did not face the music, his mother
    would be charged.

[37]

Mr.
    Caskie also testified that he had no concerns about the appellants ability to
    understand the effect of a guilty plea and the consequences of that plea. He
    had known the appellant for several years. Mr. Caskie put it this way:

The facts are simple. He was charged and pleaded guilty to
    being in possession of two guns in his house. We went over it and over it and
    over it. He understood. He, what he was, lets put it this way he did not want
    to go to jail. He did not want to plead guilty. My advice to him was, you will
    be found guilty and thats when I started asking him the questions, are you
    telling me that you didnt know the guns were there and the answer was, no. I
    explained possession to him. He understood. He was very unhappy about going to
    jail.

[38]

Mr. Caskie indicated that when he saw the appellant on the date
    scheduled for sentencing (January 29, 2009), he became concerned. The appellant
    was very emotional and aggressive. Having read the presentence report, Mr. Caskie
    had a fuller appreciation of the appellants medical background. Mr. Caskie
    sought and obtained a one-week adjournment.

[39]

Mr.
    Caskie testified that he did not see the appellant between January 29 and
    February 5. The appellant was even more emotional on February 5 than he had
    been the prior week. He told Mr. Caskie that he was not ready to deal with the
    charges. Mr. Caskie and the appellant mutually agreed that Mr. Caskie should no
    longer act for the appellant. Mr. Caskie was removed from the record and Mr.
    Howarth became counsel for the appellant on the next appearance on February 18,
    2009.

[40]

Mr.
    Howarth briefly cross-examined Mr. Caskie on the application to set aside the
    pleas. It is fair to say that those questions did not challenge Mr. Caskies credibility
    or any aspect of his representation of the appellant.

[41]

The
    parties filed written argument on the application to set aside the guilty
    verdict. Mr. Howarth advanced only one argument, claiming that the appellant
    did not fully understand the consequences of entering a guilty plea. Mr.
    Howarth relied on the evidence relating to the appellants medical and
    emotional problems, as described in the presentence report and Dr. DeRubeiss
    letter. He also relied on the appellants mental state at the time he entered the
    plea, as described by the appellant in his evidence. Mr. Howarth did not
    question Mr. Caskies representation of the appellant.

The Ruling on the Application

[42]

In
    reasons released on February 4, 2010, the trial judge declined to set aside the
    guilty pleas. The trial judge correctly identified the limited cognitive
    capacity test as the standard against which the validity of the plea was to be
    measured: see
R. v. M.A.W.
,
2008 ONCA 555, 237 C.C.C. (3d) 560, at para. 33. After reviewing the evidence,
    the trial judge said, at paras. 32, and 35-37:

The thrust of this application though is a lack of
    voluntariness due to cognitive impairment and/or emotional disintegration but
    neither the medical evidence nor the record of the proceedings supports any
    such conclusion.



I accept that Mr. Baylis has some physical and emotional
    challenges. I am not satisfied on a balance of probabilities that those
    challenges are so severe as to have affected the procedural fairness of his
    plea, including his comprehension of the plea process or the facts in support
    of the charges against him, his appreciation of the nature and consequences of
    a plea or his intention in entering those pleas.

Mr. Bayliss mental and emotional status is well within the
    limited cognitive capacity standard in
R. v. Taylor
, [(1992), 11
    O.R. (3d) 323 (C.A.)], as approved and applied by the Court of Appeal in
R.
    v. M.A.W.

I find that Mr. Baylis understood the process and made a
    conscious and volitional decision to enter pleas for reasons he considered
    appropriate.

The Appeal Proceedings

[43]

The
    appellant appealed from conviction and sentence. In his Notice of Appeal,
    drafted without the assistance of counsel, he claimed that because of brain
    injuries he had suffered in various sports, he was unaware that he was pleading
    guilty to the offences for which he was ultimately convicted. In January 2012, this
    court appointed Mr. Silverstein as counsel, pursuant to s. 684 of the
Criminal
    Code
. By the time of that appointment, the appeal had grown to include claims
    of ineffective assistance aimed at both Mr. Caskie and Mr. Howarth.

[44]

The
    appellant filed two affidavits on the appeal and was cross-examined by the
    Crown. Mr. Howarth filed three affidavits and was cross-examined on behalf of
    the appellant by Mr. Silverstein. The appellants medical records from the East
    Region Mental Health Services for the period between July 2002 and December
    2004 were obtained by Mr. Silverstein, and filed on the appeal. Unfortunately,
    Mr. Caskie suffered serious medical problems subsequent to the trial
    proceedings and was not available for cross-examination by Mr. Silverstein.


III



the grounds of appeal

ISSUE #1  Did the trial judge
    err in refusing to set aside the guilty pleas?

(a)

Did the trial judge misapply the limited cognitive capacity test?

[45]

For the purpose of this ground of appeal, I take the record as it
    existed before the trial judge on the application to set aside the guilty pleas.
    Mr. Silverstein submits that the trial judge misapplied the limited cognitive
    capacity test by focusing exclusively on the appellants capacity to
    understand the proceedings and his capacity to make a decision as to the plea
    to be made in response to the charges. Mr. Silverstein submits that the trial
    judge should have gone further and determined whether, even if the appellant
    had the requisite capacity, he in fact understood the proceedings sufficiently
    to meet the limited cognitive capacity standard.

[46]

I
    cannot accept this submission. The trial judges reasons track the language
    used in
M.A.W.
Her reasons speak not to capacity in some abstract
    sense, but to the appellants actual understanding of the process at the time
    he entered the plea (para. 37):

I find that Mr. Baylis understood the process and made a
    conscious and volitional decision to enter pleas for reasons he considered
    appropriate.

[47]

Nor can the evidentiary
    basis for the trial judges conclusion be successfully challenged. Indeed, even
    if everything said about the appellants mental condition by Dr. DeRubeis and
    in the presentence report were accepted as fact, the cognitive incapacity test
    would not have been satisfied. As the trial judge observed, the appellant had some
    cognitive and emotional issues. Anxiety, depression, chronic pain, anger
    management issues and difficulty in communicating are very real problems. However,
    they establish neither an inability to understand the nature of the criminal
    proceedings in which the appellant was involved, nor an inability to make an
    effective choice as to the plea to be entered on the charges. The limited
    cognitive capacity criterion does not demand wise or even rational decisions,
    but only the ability to make a conscious decision as to the plea to be entered.

[48]

The only evidence that
    suggested the appellant was under any misunderstanding as to the proceedings or
    the nature of the pleas came from the appellant himself. On his evidence, that
    misunderstanding flowed not from any cognitive deficiency or medical disability,
    but from his lawyers failure to properly advise him. The attempt to strike the
    appellants plea based on his alleged emotional and cognitive problems could
    not get off the ground on the material put before the trial judge.

[49]

For these reasons, I would
    not interfere with the trial judges finding that the appellant had the
    requisite cognitive capacity to enter a valid plea. In reaching this conclusion
    I would not, however, want to be taken as accepting the distinction between a
    finding that an accused has the capacity to enter a valid plea and a finding
    that the accused in effect exercised that capacity and entered a valid plea. 
    When an accused challenges the validity of his plea on the ground of cognitive
    disability impairing his ability to make a decision as to the plea to be
    entered, I can see no meaningful distinction between a finding that an accused
    had the requisite mental capacity to enter a valid plea and a finding that he
    exercised that capacity and entered a valid plea.  The jurisprudence treats the
    two as one and the same.  For example, in
M.A.W.
, Laskin J.A. spoke in terms of capacity at paras. 36
    and 49:

To succeed on this appeal, the appellant
must show that his
    depression deprived him of the capacity to make an active or conscious choice whether
    to plead guilty
He cannot succeed if he can merely show that his decision
    to plead guilty was not rational or in his best interests, or even that he was
    incapable of making a decision that was rational or in his best interests.




Whether the appellant was able to make a rational choice is not
    the relevant test;
rather the test is whether the appellant had the
    capacity to make an active or conscious choice for reasons he considered
    appropriate.
[Emphasis added.]

[50]

The
    language of my colleague echoes the language used by Sopinka J. in
R. v.
    Whittle
, [1994] 2 S.C.R. 914, at pp. 933-34. Justice Sopinka also spoke in
    terms of capacity when describing the operating mind test, as it applied to
    various decisions made by an accused in the course of the criminal process.

(b)

Did the trial judge err in failing to hold that Mr. Caskie provided ineffective
    assistance on the guilty plea?

[51]

Mr.
    Silverstein submits that Mr. Caskie did not properly explain the legal meaning
    of the word possession to the appellant. He contends that on the appellants
    version of events, as told to Mr. Caskie, his possession of the guns was very
    much in issue. Counsel further argues that Mr. Caskies failings did not become
    apparent on the plea because of the sparse and conclusory nature of the Agreed Statement
    of Facts, as it related to possession, and the trial judges failure to conduct
    her own s. 606(1.1) inquiry. The admission of possession is found in a single
    sentence without amplification or explanation in the Agreed Statement of Facts.

[52]

This
    argument was not made before the trial judge. As outlined above, Mr. Howarth
    expressly disavowed any challenge to Mr. Caskies competence. Mr. Howarths
    conduct in that regard is the subject of the next ground of appeal.

[53]

The
    trial judge cannot be faulted for failing to separately address Mr. Caskies
    competence in her reasons for dismissing the application to set aside the plea.
    The argument was not made before her. During the application she was, however,
    alive to the appellants complaints about Mr. Caskies representation and
    adjourned the application specifically to get his evidence. Mr. Caskies
    testimony answered the appellants complaints.

[54]

In
    addition to Mr. Caskies testimony on the application, the trial judge had the
    appellants acknowledged interaction with the probation officer in the
    preparation of the presentence report and the appellants own evidence on the
    application. The presentence report belied any suggestion that the appellant
    did not understand that he had pled guilty in August 2008 and the appellants
    evidence, particularly as it discussed his understanding of the meaning of the
    word guilty, simply defied belief.

[55]

On
    the record before the trial judge, the facts admitted by the appellant
    supported his pleas. Mr. Caskies evidence supported the finding that the pleas
    were informed. The appellants evidence to the contrary was incapable of
    belief, particularly in light of the evidence of his interaction with the
    probation officer. Had the trial judge specifically addressed Mr. Caskies
    competence, I have no doubt that, on the material before her, she would have
    found that Mr. Caskie provided reasonable legal advice to the appellant. The
    real question of effective legal representation raised on this appeal concerns
    Mr. Howarths representation of the appellant on the application to set aside
    the guilty plea. I turn now to that issue.

ISSUE #2  Did counsels representation of the appellant on
    the motion to set aside the pleas result in a miscarriage of justice?

(a)

The arguments

[56]

The
    appellants affidavits and cross-examination on those affidavits are replete
    with allegations against Mr. Howarth. I do not propose to address them one by
    one, but will focus on the two submissions emphasized by Mr. Silverstein. The
    other submissions cannot succeed.

[57]

Mr.
    Silverstein submits, first, that Mr. Howarth failed to investigate and assemble
    the necessary medical information and testimony required to support the argument
    that the appellant lacked the cognitive capacity to enter valid guilty pleas. Mr.
    Silverstein contends that without the necessary medical information and
    testimony, the only ground advanced by Mr. Howarth on the application to set
    aside the pleas could not possibly succeed. Mr. Silverstein emphasized that Mr.
    Howarth took no steps to locate Dr. Vance, the appellants psychiatrist between
    2002 and December 2004, or to obtain his medical records. Mr. Silverstein had
    no difficulty doing both after he was appointed as counsel for the appellant.

[58]

Mr.
    Silverstein contends that Mr. Howarths failure to seek out and produce the
    necessary medical material flowed, in part at least, from his misunderstanding of
    the applicable law. Mr. Howarth believed that he only had to establish a doubt
    about the appellants capacity to enter a plea. Mr. Silverstein points to
    authority from this court which requires the applicant to demonstrate
    incapacity on the balance of probabilities:
R. v. Easterbrook
, [2005]
    O.J. No. 1486 (C.A.), at para. 5; see also
R. v. Krzehlik
, 2015 ONCA
    168, 124 O.R. (3d) 561, at para. 26.

[59]

Mr.
    Silversteins second argument arises out of Mr. Howarths refusal to advance a
    claim of ineffective assistance against Mr. Caskie on the application to set
    aside the guilty pleas. Mr. Silverstein submits that Mr. Howarth was obliged to
    inquire into the appellants numerous complaints about Mr. Caskies
    representation and, if warranted, advance a claim of ineffective assistance on
    behalf of the appellant. Mr. Silverstein acknowledges that Mr. Howarth may have
    been in a somewhat difficult position, given the nature of the appellants
    complaints. He argues, however, that the one thing Mr. Howarth could not do was
    simply ignore the appellants complaints about Mr. Caskies representation and
    proceed with the application as if those complaints had not been made. Mr.
    Silverstein contends that Mr. Howarth did exactly that and, in doing so, effectively
    abandoned the appellant and failed to provide competent representation.

(b)

The applicable law governing ineffective assistance claims

[60]

When
    an ineffective assistance claim is advanced on appeal, the appellant must
    establish both that the legal assistance at trial was incompetent and that the
    ineffective representation resulted in prejudice causing a miscarriage of
    justice. This court routinely receives affidavits and cross-examination on
    those affidavits when considering ineffective assistance claims. In some cases,
    this court must make credibility assessments and findings of fact relevant to
    the ineffective assistance claim.

[61]

In
R. v. G.D.B.
, [2000] 1 S.C.R. 520, at paras. 26-29, the Supreme Court
    recognized that allegations of ineffective assistance have both a performance
    component and a prejudice component. The performance component requires that
    the appeal court test the competence of the representation provided to the
    appellant against the standard of reasonable professional assistance. The
    prejudice component requires that the court determine whether the allegedly
    ineffective representation resulted in a miscarriage of justice by undermining either
    the appearance of the fairness of the trial proceeding, or the reliability of
    the verdict. The reliability of the verdict is undermined if the appellant can
    demonstrate that, had counsel performed in a competent manner, there is a
    reasonable possibility that the verdict could have been different: see also
R.
    v. M.B.
, 2009 ONCA 524, 251 O.A.C. 81, at paras.
6-10;
R.
    v. Archer
(2005)
, 202
    C.C.C. (3d) 60 (Ont. C.A.), at paras.
119-21;
R. v. G.M.
,
2012 NLCA 47, 289 C.C.C. (3d) 361, per
    Hoegg J.A. in dissent, at para. 75, adopted by S.C.C., [2013] 2 S.C.R. 202.

[62]

In
G.D.B.
, at para. 29, the Supreme Court also gave direction as to the
    approach that appellate courts should take in addressing the two aspects of an ineffective
    assistance of counsel claim:

In those cases where it is apparent that no prejudice has
    occurred, it will usually be undesirable for appellate courts to consider the
    performance component of the analysis. The object of an ineffectiveness claim
    is not to grade counsels performance or professional conduct. The latter is
    left to the professions self-governing body.
If it is appropriate to
    dispose of an ineffectiveness claim on the ground of no prejudice having
    occurred, that is the course to follow
. [Emphasis added.]

[63]

In
    keeping with the approach set out in
G.D.B.
, I will address the prejudice
    component first.  In my view, the prejudice alleged goes to the reliability of
    the result  the refusal to set aside the guilty pleas  and not to the
    fairness of the proceedings at which the appellant sought to set aside the
    pleas.  The appropriate prejudice inquiry can be framed in two questions:

·

Is there a reasonable possibility that the trial judge would have
    set aside the pleas if Mr. Howarth had pursued, with reasonable diligence,
    medical evidence going to the appellants cognitive capacity at the time he
    entered his pleas?

·

Is there a reasonable possibility that the trial judge would have
    set aside the pleas if Mr. Howarth had pursued, with reasonable diligence, the
    appellants claim of ineffective assistance of counsel at the time he entered
    his pleas?

(c)

The failure to seek out additional medical evidence

[64]

Mr.
    Howarth testified in cross-examination on his affidavit that he did not try to
    locate Dr. Vance, the appellants psychiatrist between 2002 and 2004. Mr.
    Howarth stated that he did not think Legal Aid would have funded those efforts
    or any attempt to interview or call Dr. Vance as a witness, had he been located.
    On his own evidence, Mr. Howarth did nothing to obtain medical evidence other
    than request a letter from Dr. DeRubeis, the appellants family doctor.

[65]

Mr.
    Howarths application to set aside the pleas was based entirely on the argument
    that the appellant did not have the cognitive capacity to enter valid pleas because
    of his emotional and cognitive problems. Inevitably, that argument depended on
    expert medical evidence. Dr. DeRubeis, the only doctor consulted by Mr.
    Howarth, had made it clear that he could not provide an opinion in support of
    the defence position. It is clear to me that without medical opinion evidence,
    the claim of cognitive incapacity could not succeed on the application to set
    aside the pleas.

[66]

I
    am, however, satisfied that had Mr. Howarth made reasonable efforts to obtain medical
    evidence, those efforts would have proved futile. It is now 2015, almost seven
    years since the appellant entered his guilty pleas. There is still no medical
    evidence suggesting that the appellant suffered from the kind of cognitive or
    emotional problems that could possibly have supported a claim that he did not
    have the limited cognitive capacity needed to enter valid guilty pleas in
    August 2008.

[67]

Dr.
    Vances records are helpful, in that they identify certain specific problems
    (e.g. the appellants depression). Those records do not speak to the impact of
    those problems on the appellants ability to make the kind of decision involved
    in entering a guilty plea. More importantly, the medical records predate the appellants
    guilty pleas by three years and consequently say nothing about his mental state
    in August of 2008. I note that although Mr. Silverstein located Dr. Vance,
    there is no affidavit from Dr. Vance addressing the appellants cognitive
    capacity in August 2008. I think it is safe to assume that Dr. Vance has no
    evidence to give on that issue.

[68]

As
    discussed in
M.A.W.
, at para. 49, the limited cognitive capacity
    inquiry sets a relatively low bar. An accused may suffer from a significant
    mental disorder and still be capable of entering valid pleas. To render the
    pleas ineffective, the disorder must be such as to render the accused incapable
    of making a conscious choice as to his or her plea. It is not enough that the
    mental disorder impair the accuseds decision-making ability, or even that it
    render the decision irrational. There is nothing in the record before this
    court to suggest that the appellant suffered from the kind of mental disorder
    that would render him incapable of choosing to plead guilty to the charges in
    August of 2008.

[69]

Looking
    to the prejudice component first, as directed in
G.D.B.
, I see no
    reasonable possibility that a diligent search for additional psychiatric or
    other medical evidence could have led to evidence supporting the claim that the
    appellants mental state left him incapable of entering a valid plea in August
    2008.

(d)

Counsels failure to pursue the appellants allegations against Mr.
    Caskie

[70]

The
    appellant, in his cross-examination on his affidavits filed in this court,
    indicated that he spoke to Mr. Howarth about the issues he had with Mr.
    Caskies representation. According to the appellant, Mr. Howarth made it clear
    from the outset that he would not go after Mr. Caskie, but would only pursue
    the medical issues. The appellant testified that although he knew Mr. Howarth
    would not go after Mr. Caskie, he did not seek new counsel because he did not
    believe that Legal Aid would have funded another lawyer.

[71]

The
    appellant also testified during his cross-examination on his affidavits that he
    told Mr. Howarth from the outset that he was not happy with Mr. Howarths
    approach on the application to strike the guilty plea. He indicated that Mr.
    Howarth told him that there was no point in making allegations against Mr.
    Caskie because Mr. Caskie would deny them and his word would inevitably be
    preferred over the appellants word. The appellant insisted that he did not
    have an opportunity to set out Mr. Caskies failings until he was being
    questioned by the Crown on the application to strike the guilty plea.

[72]

Mr.
    Howarth was cross-examined on his affidavits filed on the appeal. He testified
    that the appellant did not make any complaints about Mr. Caskies
    representation during their meetings. According to Mr. Howarth, he and the
    appellant had agreed that the application to strike the pleas would be based entirely
    on the appellants medical condition and its impact on his ability to
    understand the proceedings and the pleas.

[73]

Mr.
    Howarth indicated that the first time he heard the appellant complain about Mr.
    Caskies representation was during the appellants cross-examination on the application.
    He took no steps to inquire into the allegations made by the appellant in his
    testimony, or to subsequently challenge Mr. Caskies representation. Indeed,
    even during the appellants testimony, Mr. Howarth continued to maintain that
    he was not challenging Mr. Caskies representation (see
supra
, para. 27).
    When Mr. Caskie eventually testified several months later, Mr. Howarths
    cross-examination was brief (about five transcript pages) and not
    confrontational. In his written submissions, Mr. Howarth made no reference to
    the appellants evidence about Mr. Caskies representation.

[74]

The
    appellant and Mr. Howarth have very different recollections of their
    discussions about Mr. Caskie prior to the application to set aside the guilty
    pleas. It is at least arguable that even on Mr. Howarths recollection of the
    relevant events, he failed to provide competent legal assistance when he made
    no effort to follow-up on and determine the merits of the allegations against
    Mr. Caskie made by the appellant. There is merit to Mr. Silversteins
    submission that Mr. Howarth simply ignored his clients position and in doing so
    abandoned his cause. Assuming that Mr. Howarth should have at least
    investigated the claims against Mr. Caskie, I will turn to the prejudice
    component of the ineffective assistance claim.

[75]

Three
    features of this record lead me to conclude that there is no reasonable
    possibility the result on the application could have been any different, had
    Mr. Howarth investigated and pursued the appellants allegations against Mr.
    Caskie with reasonable diligence. First, Mr. Caskie testified at some length
    about his relationship with the appellant, the discussions preceding the guilty
    pleas, and the appellants position when the matter came on for sentencing. While
    Mr. Caskies evidence was not challenged to the extent that it would have been
    had he been available for cross-examination by Mr. Silverstein on the appeal,
    his evidence provides a coherent and thorough description of the relationship between
    the appellant and Mr. Caskie, as well as the discussions that preceded the
    guilty pleas. Mr. Caskies evidence strikes me as credible.  For example, Mr.
    Caskies willingness to acknowledge that he could be perceived as having
    pressured the appellant to plead guilty, because in Mr. Caskies view there was
    no viable alternative, seems to me to be a frank and realistic description of
    the interaction between experienced defence counsel and an accused with whom
    counsel had a history and a good working relationship.

[76]

Second,
    there is the appellants evidence in this court.  In his affidavit and
    cross-examination, the appellant explained more than once that in pleading
    guilty to the charge when read to him, he believed he was simply giving
    permission for the charges to proceed against him to trial. When the Crown
    asked the appellant in cross-examination what he thought a not guilty plea
    meant, the appellant responded:

A. Means they would have charged my mom and then she would have
    been in the same boat I was in and she would have to go through what I was
    going through.

Q.
What would have happened to you did you think?

A.
Nothing.

Q.
So you would have just been able to walk out the door?

A.
Well, yeah, I would have walked out the door.
If
    theyre not charging me, who would they be charging? Barry [Mr. Caskie] told me
    that someone has to answer. If its not you, its your mother. So, I mean,
    yeah, I walk out, they charge my mom. Thats what I was told right in the
    courtroom, in front of the courtroom before I went in there and said that.

Q.
Thats what Mr. Caskie told you?

A.
Yes.
[Emphasis
    added.]

[77]

The
    appellant made submissions in this court. He had no difficulty communicating
    with the court or understanding questions put to him by the court.  He is
    obviously an intelligent person. I do not accept his evidence about what he
    thought the words guilty and not guilty meant. His answers defy belief.

[78]

Even
    more remarkable is the appellants assertion that Mr. Caskie told him that if
    he pled not guilty, he could simply walk away from the proceedings. Why would Mr.
    Caskie make such a preposterous statement to a client? The appellants evidence
    as to what Mr. Caskie told him about the effect of pleading guilty or not
    guilty is incapable of belief.

[79]

The
    preparation and content of the presentence report is the third factor that
    causes me to conclude that there is no reasonable possibility that Mr. Howarth
    could have made an effective attack on Mr. Caskies representation. The author
    of the presentence report interviewed the appellant, his mother, his sister and
    Dr. DeRubeis. The interviews were obviously thorough and were clearly undertaken
    in preparation of the sentencing proceeding. This reality could not have been
    lost on the appellant, his mother and his sister. There is no indication in the
    report that the appellant or anyone in his family was confused about the effect
    of the pleas he had entered, or the nature of the upcoming sentence proceeding.
    It is impossible that the appellant could have gone through the entire
    presentence process under the misapprehension that he was simply going to trial
    in January 2009. The appellants interaction with the probation officer during
    the preparation of the presentence report flies in the face of the appellants claim
    that he believed he would have a trial.

[80]

For
    the reasons set out above, I do not believe the appellants assertion that when
    he pled guilty to two of the charges in August 2008, he thought he was merely
    agreeing that the matter would go on to trial. On the entirety of the record,
    it is much more plausible to conclude that the appellant pled guilty in August
    2008 on his lawyers strong advice because he realized that it was the best he
    could make of a very bad situation.  The appellant successfully delayed the
    consequences of that plea for several months.  However, when the time came to
    face the consequences of his pleas and go to jail, the appellant baulked and
    resiled from his guilty pleas. His reaction, while understandable, provides no
    basis for setting aside those pleas.

[81]

I
    am satisfied that had Mr. Howarth diligently investigated the appellants
    claims against Mr. Caskie, he would have come to the position this court is now
    in.  There is credible evidence from Mr. Caskie that he provided competent
    advice to the appellant before the appellant chose to plead guilty.  There is
    no credible evidence to the contrary.  The appellant has not demonstrated any
    prejudice flowing from Mr. Howarths failure to investigate his allegations
    against Mr. Caskie.


IV



conclusion

[82]

I would dismiss the appeal.

RELEASED: DD  JUN 29 2015

Doherty J.A.

I agree David Watt
    J.A.

I agree M.L. Benotto
    J.A.


