



WARNING

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

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

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    that could identify the complainant or a witness shall not be published in any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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Howell, 2015 ONCA 728

DATE: 20151029

DOCKET: C55558

Feldman, Benotto and Roberts JJ.A.



BETWEEN

Her Majesty the Queen

Respondent

and

Aston Howell

Appellant



Erika Chozik, for the Appellant

Lisa Joyal, for the Respondent

Heard:  October 21, 2015

On appeal from the conviction imposed on February 3, 2012, by
    the Honourable Madam Justice K. Corrick of the Superior Court of Justice,
    sitting without a jury.

ENDORSEMENT

[1]

We are grateful for section 684 counsels
    thorough and careful preparation of this appeal.  Notwithstanding her very able
    submissions, we are not persuaded that there was a miscarriage of justice
    because the performance of the appellants trial counsel was not ineffective
    and did not undermine the appearance of a fair trial or the reliability of the
    verdict:
R. v. J.B.
, [2011]
    O.J. No. 2322 (C.A.), at para. 2;
R. v. Joanisse
, [2011] O.J. No. 2322 (C.A.), at para. 69.

[2]

As both counsel fairly acknowledged, the evaluation
    of counsels performance is not a standard of perfection or hindsight but of
    reasonableness:
R. v. Joanisse
,
    at para. 71.

[3]

The credibility of the complainant was a
    key issue in this case.  It is clear from the trial transcript that the
    appellants trial counsel cross-examined the complainant on the most material
    inconsistencies and frailties in her testimony which evolved over time.  The
    trial judge referenced these inconsistencies in her Reasons for Judgment,
    including the very significant omissions from and additions to the
    complainants police statement that the complainant told the appellant to use a
    condom and the appellants ejaculation.

[4]

Further, in accordance with the
    submissions of the appellants trial counsel, the trial judge rejected the
    Kents evidence, which, if accepted, would have served to corroborate important
    aspects of the evidence of the complainant and her sister concerning the presence
    of chickens and the nature of the ritual baths that they testified took place
    in the appellants apartment and that the appellant denied.

[5]

The purpose of appellate inquiry into an
    allegation of ineffective assistance of counsel is not to grade counsels
    performance:
R. v. J.B.
, at
    para. 6.  That the appellants trial counsel could have asked more questions, or
    that the submitted defences did not succeed, does not mean that counsels
    representation of the appellant was ineffective or that the verdict would have
    been different.  We are of the view that it would have made no difference in
    this case
.

[6]

The trial judge was alerted to the most serious deficiencies and
    discrepancies in the complainants evidence, was alive to a possible motive to
    fabricate because of the complainants application to the Criminal Compensation
    Board, was aware of the potential for collusion between the complainant and her
    sisters, and fully understood the appellants denial that the offences had ever
    occurred.

[7]

The trial judges positive assessment of
    the complainants evidence and her negative assessment of the appellants
    testimony did not depend on the fact that not every detail of the appellants
    evidence was put to the complainant.  In the circumstances of this case, it was
    not necessary and would have been confusing and unhelpful for appellants
    counsel to put the appellants conflicting versions of events to the
    complainant without knowing exactly what the appellant would say when he
    testified.

[8]

On the issue whether trial counsel
    undermined the appellants credibility by failing to comply with the rule in
Browne
    v. Dunn
(1893), 6 R. 67 (H.L.(Eng.)) when
    cross-examining the complainant, the appellants trial counsel submitted on
    several occasions in his closing and in response to the trial Crowns position
    in her closing that he had complied with the rule in
Browne v. Dunn
.  The trial judge did not find that the appellants trial
    counsel had breached it.

[9]

The trial judges acceptance of the
    complainants evidence was primarily based on the credible manner in which the
    complainant gave her evidence and its corroboration by and consistency with
    other evidence, including importantly, in response to the appellants defense
    of identity, the appellants significant admissions that he had previously met
    the complainant and that she had come to his apartment.

[10]

Similarly, the principal reasons for the trial judges
    rejection of the appellants evidence were the manner and content of the
    appellants testimony over which his counsel had little control.  As the trial
    judge concluded: I did not find Mr. Howell to be a credible witness.  He did
    not give his evidence in a forthright manner.  He was not responsive to
    questions. He often made no sense.  The trial judges assessment of the witnesses
    is entitled to considerable deference.

[11]

Finally, we reject the submission that the appellants
    trial counsel fell below the standard by asserting the alternative defenses of
    consent or honest but mistaken belief in consent, when the appellant denied any
    sexual contact.  We note that the appellants previous trial counsel, who died
    before the trial and with whom the appellants trial counsel had articled and
    continued to work from time to time, had indicated following the preliminary
    hearing and the judicial pre-trial that consent was the main defense.  The
    assertion of the alternative defenses was a strategic decision by trial counsel
    following the appellants problematic trial testimony.  Although there were
    legal and factual problems with this position, in a judge-alone trial, there
    would have been no prejudice to the appellant in the circumstances of this
    case.

[12]

As a result, we find that there was no miscarriage of
    justice in this case.  There was no trial unfairness to the appellant and the
    reliability of the trial judges verdict was not undermined by the
    representation of the appellant by his trial counsel.  The appellants trial
    counsel was not ineffective.

[13]

We admit and have considered the appellants fresh
    evidence.

[14]

For these reasons, the appeal is dismissed.

K. Feldman J.A.

M.L. Benotto
    J.A.

L.B. Roberts
    J.A.


