



C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Trought, 2021 ONCA 379

DATE: 20210603

DOCKET:
C
64815

Feldman, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Trought

Appellant

R. Craig Bottomley and Andrea
    Vanderheyden, for the appellant

Lisa Csele, for the respondent

Heard: February 16, 2021 by video
    conference

On appeal from the conviction entered by
    Justice Robert F. Goldstein of the Superior Court of Justice on December 19,
    2016.

Trotter
    J.A.:

A.

Introduction

[1]

The appellant was convicted on a single count of
    possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of
    the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19. He appeals his conviction on two grounds. First,
    he submits that the trial judge erred in dismissing his application under s.
    11(b) of the
Canadian Charter of Rights and
    Freedoms
. Second, he contends that he received ineffective
    assistance from his trial counsel, particularly as it related to his decision
    to testify.

[2]

The following reasons explain why I would
    dismiss the appeal from the trial judges s. 11(b) ruling. However, I would
    allow the appeal because the appellant received ineffective legal assistance.

B.

Factual Overview

[3]

The case against the appellant was rooted in the
    fruits of a search of his apartment, where the police found a large amount of
    cocaine, along with assorted drug paraphernalia. The search was conducted
    pursuant to a warrant that was based on information supplied by a confidential
    informant. The appellant challenged the warrant under s. 8 of the
Charter
by attacking the information
    said to have come from the informant.

[4]

The confidential informant referred to two
    locations relevant to the narrative of events. The first is 165 Legion Road,
    Unit 1225 in Toronto. The police believed Unit 1225 was being used as a stash
    house for drugs and/or the proceeds of crime. Keeli Stith, a woman the
    appellant was seeing at the time, lived at 165 Legion Road, in Unit 434. The
    appellant went to her apartment on the evening of Sunday, July 28, 2013. An
    unrelated break-in occurred in the building in the early morning hours of July
    29th that resulted in considerable police presence. The police knocked on Ms. Stiths
    door at about 2:00 a.m. The appellant and Ms. Stith told the police that they
    heard a loud bang, but they were unable to provide any further information.

[5]

Shortly after the police visit, the appellant
    left the building and went home. The appellant lived at 80 Harrison Gardens
    Boulevard, Unit 520, which is roughly half an hour away. This is the second
    location to which the confidential informant referred. Later that day, at about
    4:00 p.m., the appellant returned to 165 Legion Road for a short visit with Ms.
    Stith. There was still a significant police presence.

[6]

The police arrested the appellant in the Ford
    Fusion on July 30, 2013. Armed with a search warrant, they searched the
    appellants apartment, where they found 2 ½ kilograms of powder cocaine, 7
    grams of crack cocaine, $440 in cash, a money counter, packaging paraphernalia,
    a debt list, as well as correspondence and identification bearing the
    appellants name.

[7]

The issuance of the search warrant was explained
    in the trial judges ruling dismissing the appellants s. 8
Charter
application (see
R. v. Trought
, 2016 ONSC 7919). The
    trial judge noted that the confidential informant reached out to the Toronto
    police on July 30, 2013, and provided the following information:



an unknown male was parked in the vicinity of 165 Legion Road;



the unknown male was described as Black, athletic, and slender;



the unknown male was driving a black Ford Fusion with Ontario
    licence DLJX 572;



the unknown male met with a white male;



the white male was described as 61, 150-160 lbs., with short brown
    hair;



the unknown male showed the white male a large quantity of cocaine
    in kilo bricks in the trunk of the Ford Fusion;



several police cruisers showed up while the unknown male was showing
    the white male the cocaine bricks;



the unknown male drove to the area of Harrison and Everson Drive in
    Toronto, where he had his stash house; and



the Ford Fusion was a rental vehicle that could not be traced back
    to the unknown male.

[8]

Trial counsel initially challenged the validity
    of the search warrant by alleging that the police fabricated the information
    said to have come from the confidential informant. He later backed off from
    that position, maintaining that, if the information did originate with the
    confidential informant, the part about the appellant showing bricks of cocaine
    from the trunk of the car was so ridiculous that it must be false.

[9]

The appellant testified on the
Charter voir dire

for the s. 8 challenge. In his evidence in chief, he claimed that he
    did not show anyone bricks of cocaine in the trunk of his car. In
    cross-examination, the appellant admitted to trafficking in cocaine. He
    acknowledged that half a kilogram of the cocaine seized from his apartment
    belonged to him; however, the rest belonged to a friend (who was also his
    supplier). The appellant allowed his friend to leave drugs in the apartment on
    the day of the seizure.

[10]

During a colloquy with the trial judge after the
    appellant testified, trial counsel agreed that the trial could proceed in a
    blended fashion (i.e., the appellants
voir dire
evidence would be applied to the trial proper if the
Charter
application failed). It did,
    and trial counsel invited the trial judge to find the appellant guilty. He did,
    and then sentenced the appellant to 5 ½ years imprisonment.

C.

Unreasonable Delay

[11]

The appellant submits that the trial judge erred
    in failing to find that his right to be tried within a reasonable time under s.
    11(b) of the
Charter

was infringed. It is not necessary to examine
    all of the steps taken in the proceedings in minute detail, because the
    appellant advances two focused arguments in support of this ground of appeal:
    (1) the trial judge erred in relying on the transitional exceptional
    circumstance; and (2) the trial judge erred in the manner in which he dealt
    with the asserted prejudice.

[12]

The appellant was charged on July 30, 2013. When
    he applied for a stay of proceedings under s. 11(b), his trial in the Superior
    Court of Justice was expected to finish by October 29, 2016  39 months from
    the date the appellant was charged.

[13]

Until the later stages of the trial proceedings,
    the parties were governed by the framework in
R. v.
    Morin
, [1992] 1 S.C.R. 771. However, the landscape
    shifted dramatically on July 8, 2016 when the Supreme Court of Canada released
    its judgment in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. Under the new regime, after
    deducting 5 months for defence delay, the remaining 34-month delay exceeded the
    applicable presumptive ceiling of 30 months.

[14]

The trial judge concluded that the transitional
    exceptional circumstance applied in this case. As he said, at para. 25 of his
    ruling: The parties reasonably relied on the law as it existed at the time.
    See also paras. 26-27 and the reference to
R. v.
    Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433, at
    para. 56.

[15]

The appellant contends that the trial judge did
    not explain why it was appropriate to apply the transitional exceptional
    circumstance. He submits the Crown had an onus to justify the application of the
    transitional exceptional circumstance, yet the trial judges reasons do not
    disclose how the Crown relied on the pre-
Jordan

jurisprudence. I disagree. It was
    apparent from the Crowns trial submissions that it relied on the law as it
    existed throughout most of the proceedings, until
Jordan
ushered in a new approach. In
R. v.
    Powell
, 2020 ONCA 743, 153 O.R. (3d) 455, at para.
    37, Nordheimer J.A. said: There was no reason  for the parities to believe that
    they would be judged by a different standard. The same conclusion may be drawn
    in this case.

[16]

The manner in which the parties proceeded in the
    pre-
Jordan
stages of
    the proceedings reflects an adherence to the dictates of
Morin
. Regrettably, it also reflects the
    impetus for change that inspired
Jordan
 both sides seemed content with a relaxed approach to the progress
    of the case. On the one hand, the Crown took too long to disclose a redacted
    version of the relatively straightforward Information to Obtain a search
    warrant (ITO); however, the trial judge accounted for this lapse by
    attributing three months of Crown delay. On the other hand, trial counsel
    adjourned the preliminary inquiry so that he could take a vacation, resulting
    in a five-month delay. Neither side distinguished itself in terms of
    efficiency.

[17]

Nevertheless, the case was close to (if not
    within) the
Morin
guidelines.
    The trial judge found that the institutional plus Crown delay in the Ontario
    Court of Justice was 11 months (set against a guideline of 8-10 months),
    whereas in the Superior Court the delay was 9 months (with a guideline of 6-8
    months). On appeal, the Crown submits that the trial judge made
    mathematical/rounding errors such that the institutional/Crown delay was properly
    17.5 months, just below the
Morin

guidelines. The appellant did not
    contradict this re-calculation during the hearing.

[18]

I need not resolve this issue definitively. The
    trial judge subsequently mentioned in his discussions with counsel that his s.
    11(b) determination involved a close call. I agree with his assessment.

[19]

The appellant also submits that the trial judge
    erred in the manner that he addressed asserted prejudice by the appellant. In
    an affidavit, the appellant claimed that, as a result of the delay in his
    proceedings, he developed high blood pressure, his income-earning opportunities
    decreased, and his inability to travel outside Canada resulted in him missing family
    functions and funerals. Lastly, he asserted that a long-term relationship with
    a woman (not Ms. Stith) experienced significant deterioration.

[20]

The appellant acknowledged that the Crown
    consented to some relatively minor variations of his bail. However, missing
    from the appellants affidavit is any indication that he sought other bail
    variations to ameliorate the hardships he sought to rely upon. He failed to
    back up his medical complaints with any supporting documentation typically seen
    in these circumstances. His affidavit was also light on detail, especially in
    relation to the impact of his inability to travel outside Canada.

[21]

In dismissing the s. 11(b) application, the
    trial judge said, at para. 40: Having reviewed Mr. Troughts affidavit, I am
    not satisfied that the prejudice he has suffered, while real, arose out of the
    delay rather than the fact of the charges. I agree with the appellants
    counsel that this aspect of the trial judges reasons is cursory. However,
    given the lack of initiative on the appellants part to address the bail
    restrictions he faced, I see no reason to disturb the trial judges finding.

[22]

I would dismiss this ground of appeal.

D.

Ineffective Assistance of Counsel

(1)

Introduction

[23]

The appellant submits that he received
    ineffective assistance from his trial counsel.
[1]
Although the appellants application was initially quite broad when filed, his
    factum and oral argument focused on the manner in which trial counsel conducted
    the s. 8
Charter
application. The appellant submits that trial counsels ineffectiveness is reflected
    in his agreement to a blended procedure without first obtaining instructions
    from the appellant.

[24]

The appellant claims that he was blindsided by
    this decision. He thought that his evidence would only be used on the
voir dire
. Relatedly, because he was
    unaware of the concept of constructive possession, the appellant did not
    realize that his testimony about allowing his friend to keep cocaine at his
    apartment was inculpatory. The appellant never intended to confess under oath
    to possessing all of the cocaine seized from his apartment. Had he been
    properly advised about the legal effect of his evidence, and had he known about
    the use to which it would ultimately be put, he would not have testified at
    all. He said that trial counsels ineffectiveness deprived him of his right to
    stay silent at trial, or at least the ability to make a meaningful and informed
    choice on this fundamental issue.

[25]

The respondent submits that the appellant was
    adequately represented. The case was always about the validity of the search
    warrant: if the
Charter

application failed, guilt would
    inevitably follow. The respondent points to an Agreed Statement of Facts that
    was filed at trial in which the fruits of the search are acknowledged. The
    appellant was involved in the preparation of this document, reflecting that he
    knew all along that he would be found guilty if he was unsuccessful in
    excluding the evidence. In short, the respondent submits that any missteps by trial
    counsel were inconsequential.

(2)

Proceedings at Trial

[26]

A good deal of the case against the appellant
    was based on preliminary inquiry transcripts that were filed on consent. In the
    lead up to the
Charter voir dire
, trial counsel advised the trial judge that the appellant would
    testify that he had nothing to do with what the confidential informant allege[d]
    and would give evidence admitting that the apartment was his, admitting that
    some of the drugs in that apartment were his. Trial counsel later said that
    the appellant would have some comment about what of those drugs were actually
    his drugs. The trial judge inquired: And thats in relation to the warrant.
    This is not the trial itself. Trial counsel said, Yes, on the application.

[27]

I pause here to observe that trial counsels
    approach to attacking the search warrant was somewhat unique. At the
    preliminary inquiry, he was unsuccessful on a motion to cross-examine the affiant
    of the ITO. He considered renewing the application at trial, but ultimately
    decided against doing so because he received further information from the
    Crown. Consequently, without challenging any police officer about the existence
    of the confidential informant, or the plausibility of the information supplied
    to the police, trial counsel put the appellant forward to imply that either the
    informant did not exist or the information they provided to the police was
    fabricated.

[28]

As noted above, Keeli Stith testified as a witness.
    She lived at 165 Legion Road, Unit 434 and testified about the appellants
    presence in her apartment during the evening of Sunday, July 28, 2013 and the
    police visit in the middle of the night in relation to the burglary in the
    building. The appellant left about 30 to 45 minutes after the police visit. The
    appellant returned to Ms. Stiths apartment around 4:00 or 5:00 p.m. that same
    day, July 29, to bring her food. Ms. Stith accompanied the appellant downstairs
    when he was leaving. There were many police cars parked out front. Ms. Stith
    suspected that there was an undercover officer in the lobby. After the
    appellant left, she returned to her apartment.

[29]

Ms. Stith knew nothing of the appellants
    involvement with drugs. She thought he was a stock trader.

[30]

The appellant testified that July 28, 2013 was
    the first time he went to 165 Legion Road. He denied showing anyone bricks of
    cocaine from the back of a car. In fact, he did not have cocaine on him when he
    went there. The appellant testified that, when he left the building in the
    early morning hours on July 29, there were as many as 10 police cars outside.
    The appellant said that he returned to the building later that day with food
    for Ms. Stith. There was still a massive police presence. The appellant
    stayed for half an hour and then left. Ms. Stith walked him outside. He went
    home. The next day, he was arrested in his vehicle on his way home from a community
    barbecue.

[31]

While the appellants examination-in-chief was
    focused on issues related to the search warrant, the appellant was
    cross-examined extensively on his activities as a drug dealer.

[32]

The appellant admitted that half a kilogram of
    the cocaine found in his apartment belonged to him. He allowed his friend/supplier
    to leave some cocaine in his apartment on the day that the search warrant was
    executed. His friend was to retrieve his portion of the cocaine later that day.
    The appellant admitted that the scales were his, as was the money counter. He
    acknowledged that there was over $100,000 worth of cocaine in his apartment.

[33]

The appellant testified that he did not traffic
    cocaine on a large scale. He estimated he sold drugs to four people a month. He
    had never purchased cocaine at the kilogram level. In relation to a notebook
    that the police said contained a drug debt list, which was found in close
    proximity to a large quantity of drugs, the appellant claimed that it was used
    to record gym promotions, another line of work he pursued, partner draws, and
    his stock trading information.

[34]

During their search, the police also discovered
    seven grams of crack cocaine. The appellant disavowed any prior knowledge of
    crack in his apartment. He surmised that his supplier gave him a sample of
    crack cocaine.

[35]

After the appellant testified, the trial judge
    addressed counsel to be clear about [what was] going on [that] morning. He
    observed that they were in the midst of a s. 8
Charter
    voir dire
, but he heard a lot of evidence that did
    not relate to the preconditions to the issuance of the search warrant. The
    trial judge said that he assumed it was meant to be a blended procedure. Trial
    counsel responded immediately:

The reality is that this is a blended
    hearing
. The reality is that all of the evidence,
    including my clients evidence and eyewitness, although strictly I said Id
    call him on the motion  Im content they be heard on the trial.
My clients,
    if you admit the evidence, would be sufficient to establish a guilt regardless
    of his admission, so his evidence doesnt hurt him on the trial at all.
This witness doesn't hurt him on the trial at all. So all of the evidence can
    apply to both the motion and the trial.
Its a true blended hearing.
[Emphasis added.]

[36]

There was further discussion and trial counsel agreed
    with the trial judge that, if the evidence were to be admitted, the appellants
    evidence could be considered in mitigation or aggravation of sentence.

[37]

After another police witness gave evidence and
    the parties made closing submissions, the proceedings were adjourned for
    approximately six weeks. When the trial resumed, the trial judge dismissed the
Charter
application. In his written
    reasons, the trial judge thoroughly rejected the appellants evidence. As he
    said at para. 40: I simply do not accept that Mr. Trought is a credible
    witness. Although a self-confessed drug dealer, he took pains to minimize his
    involvement in the business. He repeated his rejection of the appellants
    evidence at a number of junctures in his reasons
[2]
and made detailed findings in support of his conclusions.

[38]

After providing counsel with a written copy of
    his ruling, the trial judge asked about next steps. Trial counsel advised:
    Well, theres no other issue in the trial Your Honour, so the next steps is
    for you to make a finding of guilt.  All of the evidence applies. Its the
    only issue I was litigating. The trial judge made the finding of guilt and the
    case was adjourned for sentencing.

(3)

Fresh Evidence on Appeal

[39]

The appellant filed an affidavit in support of
    his claim of ineffective assistance of counsel. Trial counsel filed an
    affidavit in response. Both were cross-examined. The parties agreed that the
    affidavits and cross-examination transcripts were properly before us for the
    purpose of considering this issue: see
R. v. W.(W.)
(1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at pp. 232-33;
R. v. Joanisse
(1995), 102 C.C.C. (3d)
    35, at pp. 43-44; and
R. v. Chica
, 2016 ONCA 252, 348 O.A.C. 12, at para. 5.

[40]

The key issues are whether trial counsel
    properly advised the appellant about the implications of acknowledging that he
    allowed his friend to leave drugs in his apartment, and whether he trammeled on
    the appellants right to decide whether to testify without consulting him about
    the blended procedure. Typical of this type of application, trial counsel and
    the appellant are at odds as to what happened.

(4)

Analysis: The Appellant was Ineffectively Assisted
    by Counsel

[41]

I begin with a discussion of the governing
    principles and then consider the evidence.

(a)

Introduction

[42]

The framework for assessing claims of
    ineffective assistance of counsel is well-established. The appellant must
    establish: (1) the facts material to the claim of ineffective assistance on the
    balance of probabilities; (2) that the representation provided by counsel fell
    below the standard of reasonable professional assistance in the circumstances;
    and (3) the ineffective representation resulted in a miscarriage of justice:
R. v. G.D.B
.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27;
Joanisse
, at p. 59.

[43]

Elaborating on the third criterion, miscarriages
    of justice may take various forms. Some may impact on the outcome of the trial;
    others may disclose unfairness in the proceedings:
R.
    v. K.K.M
.
, 2020
    ONCA 736, at paras. 55, 91. As Major J. said in
G.D.B
.
, at para. 28: In some instances,
    counsels performance may have resulted in procedural unfairness. In others,
    the reliability of the trials result may have been compromised.

[44]

In
R. v. Stark
, 2017 ONCA 148, 347 C.C.C. (3d) 73, this court found that the
    appellants trial counsel made the election as to mode of trial without
    consulting his client, resulting in a finding of ineffective assistance of
    counsel. Lauwers J.A. said, at para. 20: The miscarriage of justice lies in
    proceeding against the accused without allowing him to make an informed
    election, and the accused need not establish further prejudice. What the
    accused might or might not have done had he been aware of his options is not
    relevant. See also
K.K.M
.
, at para. 91. This court has
    recognized that public confidence in the administration of justice is just as
    shaken by the appearance, as by the fact of an unfair proceeding: see, for
    example,
R. v. Olusoga
,
    2019 ONCA 565, 377 C.C.C. (3d) 143, at para. 13; and
R. v. McDonald
, 2018 ONCA 369, 360
    C.C.C. (3d) 494, at para. 51.

[45]

The appellant acknowledged that he was aware
    that, if the s. 8
Charter
application failed, the case against him was formidable, if not
    worse. However, the appellants claim is based on the fundamental unfairness of
    being undermined by trial counsels combined failure to properly advise him
    about the implications of his anticipated testimony and to obtain proper
    instructions on the decision to have his testimony apply at trial.

(b)

The Decision to Testify

[46]

The appellants allegation of ineffective
    assistance engages consideration of the respective roles of defence counsel and
    the client in a criminal proceeding. Who is in charge of what? Modern criminal
    practice assigns the vast majority of decisions in a criminal trial to defence
    counsel. Counsel is expert in the law. They are required to assist the accused
    person in navigating the criminal trial process by providing sound legal
    advice. However, it is recognized that certain decisions belong to the client:
David
    Layton & Hon. Michel Proulx,
Ethics and Criminal Law
,
    2nd ed. (Toronto: Irwin Law, 2015), at p. 105.

[47]

In his famous article, The Role and
    Responsibility of the Defence Advocate (1969-1970), 12:4 Crim. L.Q. 376, at
    pp. 386-87, G. Arthur Martin (later, the Honourable G. Arthur Martin, of this
    court) identified the following decisions that are the clients to make: (1)
    how to plead; (2) whether to waive the right to a jury trial (where that option
    is available); and (3) whether to testify.

[48]

This list has been modified over the years. For
    instance, item (2) in Justice Martins article now encompasses the choice
    between a judge alone trial in the Ontario Court of Justice and the Superior
    Court:
Stark
, at para.
    18. In
R. v. Szostak
,
    2012 ONCA 503, 111 O.R. (3d) 241, at paras. 77-80, this court held that it is
    the clients decision whether to advance the defence of not criminally
    responsible on account of mental disorder under s. 16 of the
Criminal Code
; counsel cannot advance
    this defence without instructions.

[49]

Because the right to make these decisions
    belongs to the client, counsel cannot make them alone. As Lauwers J.A. said in
Stark
, the question is whether counsel
    has made certain decisions that should have been made by the accused person
    because they relate to the accused persons fundamental right to control his or
    her own defence: at para. 16, citing
R. v. Swain
, [1991] 1 S.C.R. 933, at p. 972.

[50]

With respect to these fundamental decisions,
    ones that belong to the client, all the lawyer can do is provide advice and act
    on proper instructions. But that advice must be competent. As Doherty J.A. said
    in
K.K.M
.
, at para. 91:

An accused is denied his right to choose
    whether to testify when counsel actually makes the decision,
or when counsel
    provides no advice or advice that is so wanting, as to preclude the accused
    from making a meaningful decision about testifying.
In those situations,
    counsels ineffective representation denies the accused the right to make a
    fundamentally important decision about the conduct of his defence.
That
    denial goes to the appearance of the fairness of the trial, if not the actual
    fairness of the trial
. Either results in a miscarriage of justice,
    regardless of the impact of the ineffective representation on the reliability
    of the verdict. [Emphasis added.]

[51]

The quality of advice on the decision to testify
    was at issue in
R. v. Faudar
, 2021 ONCA 226. Faudar was charged with firearms offences that were
    discovered through the execution of a search warrant. He testified that,
    unbeknownst to him, his friend left a handgun and ammunition in his music
    studio. Faudar moved the items to his locked bedroom, where they were
    discovered days later when the police executed the search warrant. His innocent
    possession defence was rejected, and he was found guilty.

[52]

On appeal, Faudar alleged that he received
    ineffective assistance from his trial counsel  his lawyer insisted that he
    testify, even though he did not want to. As in this case, appellate counsel
    submitted that trial counsel essentially set his client up for certain failure
    by having him admit, under oath, the legal elements of possession. In response,
    it was the Crowns position that Faudar chose to testify, but it had no impact
    on the verdict in any event  because Faudars s. 8
Charter

application
    was unsuccessful, the evidence that was admitted overwhelming established his
    guilt.

[53]

This court dismissed the appeal. Writing for the
    court, Tulloch J.A. endorsed the holdings in
Stark
and
K.K.M
.
concerning the right of the accused to
    make fundamental trial choices and the lawyers corresponding obligation to
    offer sage advice in this regard: at para. 80. He concluded that Faudars
    decision to testify was informed and voluntary, at para. 82: Defence counsel
    detailed the significant risk of conviction on the basis of constructive
    possession in a reporting letter provided to the appellant prior to trial.
    Moreover, Tulloch J.A. observed that there was ample evidence pointing to
    constructive possession, even without Faudars testimony: at para. 88. Nevertheless,
    he held that there was some faint hope of success in Faudars innocent
    possession assertion that justified the decision to elicit his evidence.

[54]

Lastly, combined with other allegations of
    incompetence, Tulloch J.A. determined that, even if defence counsel had made
    some missteps, Faudar failed to establish that counsels performance undermined
    the integrity or reliability of the verdicts, or that it rendered the trial
    unfair: at para. 109.

[55]

With these principles in mind, I turn to assess
    the evidence proffered by the appellant and counsel.

(c)

The Appellants Affidavit and Cross-Examination

[56]

In his affidavit, the appellant acknowledged
    discussing with trial counsel the possibility of testifying. As he said:

In one of our meetings, [trial counsel] and I
    discussed the possibility of me testifying. My understanding was that if I were
    to testify on the section 8 motion, my evidence would not be part of the
    substantive trial. It was [trial counsels] idea that I not testify on the
    trial, only the motion. It was also [trial counsel] who told me that my
    testimony on the motion could not be used at the trial.

[Trial counsel] knew that if I were to testify
    under oath I would have to admit that a portion of the cocaine found by the
    police belonged to me. The bulk of it belonged to a friend of mine. [Trial
    counsel] did not explain the concept of constructive possession.

[57]

The appellant stated that trial counsel advised
    the trial judge that the procedure would be a blended procedure after the s. 8
Charter
motion was dismissed. In fact,
    this occurred after the appellant testified, but before the trial judges
    ruling. The important point is that the appellant swore that trial counsel did
    not confer with him before agreeing to the blended procedure, saying: [I]t was
    in direct contradiction to how [trial counsel] had told me my evidence could be
    used. Had I known that my evidence would be admissible at my trial, I would not
    have testified.

[58]

In his cross-examination, the appellant
    testified that he had never previously been arrested or charged with a criminal
    offence. He said, [T]his charge is the first Ive ever been through the
    process. Nevertheless, he knew that if the evidence was admitted, the case
    against him was overwhelming.

[59]

The appellant testified that he was not aware of
    what a blended trial meant. When he eventually learned that his evidence
    would be used on the trial, he did not raise the issue with trial counsel. As
    he said:

No, I did not raise that concern with my
    counsel. And at the end of the day, what I was told, my evidence would not be
    used against me. I wouldnt have gone up there and confessed. I -- thats what
    I was told. It would not be used against me. He gave me multiple examples of
    people going up there and saying they did this and then it cannot be used in
    the trial. And I also asked him, Well, if a judge hears it, how is he going to
    unhear it? Kind of, if you know understand what I mean. He goes, Well --

(d)

Trial Counsels Affidavit and Cross-Examination

[60]

The essence of trial counsels affidavit is that
    he was in frequent communication with the appellant about the conduct of his
    trial. As he said, [the appellant] was fully engaged in each and every
    decision both up to and including the trial. He emphasized that the defence of
    the case was always focused on attempting to exclude the evidence seized
    pursuant to the search warrant. Trial counsel said: It was all or nothing, win
    or lose. If the drugs were excluded we win, if the drugs were admitted we lose.

[61]

Trial counsel characterized as nonsense the
    appellants assertion that he first heard about the blended procedure when it
    happened. As he explained: He was fully aware of my tactics and that it would
    be a blended trial and that this approach was specifically designed to be
    effective with the learned trial judge and maximize our chances of success. If
    he had not testified the chances of success were zero. However, trial counsel
    could not pinpoint precisely when he advised the appellant about a blended
    procedure.

[62]

I wish to comment on an unfortunate passage in trial
    counsels affidavit. In his introductory paragraphs, he indicated that he had
    known the appellant for a couple of decades and had been introduced to friends
    and associates of his who were also engaged in the sale of cocaine and other
    illicit drugs. Trial counsel then said: It has always been abundantly clear
    to me that Mr. Trought was a career drug dealer although he also engaged in
    other lawful employment from time to time to earn an income and pay taxes, his
    primary vocation was the sale of drugs.

[63]

This assertion is at odds with the appellants
    trial evidence, and his evidence on the fresh evidence application. The
    appellant does not have a criminal record; in fact, before this case, he had
    never been charged with a criminal offence.

[64]

I appreciate that a claim of ineffectiveness is
    unpleasant for the lawyer who is the target of such an allegation. However, such
    gratuitous comments about a former client are unhelpful and unnecessary to
    respond to the allegations of ineffectiveness.

[65]

The cross-examination of trial counsel revealed
    shortcomings in his response to the allegations of ineffectiveness. When
    questioned by the respondent, trial counsel claimed that he received
    instructions on the decision to testify. Asked whether he got written
    instructions, he said: Absolutely not. I, perhaps, am flawed in this regard. I
    do not get written instructions from my clients. Trial counsel spoke of rare
    occasions when he might get written instructions and said, But I wouldnt say
    that 10 times out of a 47-year career have I received written instructions on
    an issue like that.

[66]

When trial counsel was asked whether he advised
    the appellant about a blended trial, he said, Well, I dont know if I ever used
    the term blended trial to [the appellant]. I made it clear that he would give
    evidence on the
voir dire
and that I would have the -- that the -- suggest that the evidence
    apply to the trial itself. He was unable to specify when this discussion
    occurred.

[67]

The cross-examination of trial counsel revealed confusion
    as to when the decision was made to go with a blended procedure. Trial counsel acknowledged
    that he did not mention it to the trial judge at the outset of the motion, or
    when the appellant testified. Yet, he maintained that the appellant always knew
    that his only hope of success was to exclude the evidence of the drugs,
    otherwise [they] were toast on the trial. The appellants counsel referred trial
    counsel to the exchange with the trial judge referred to in para. 35 above and
    suggested that this was the point in time when the decision was made. Trial
    counsel gave the following answer:

Thats the way it looks, in reading. I dont
    have a perfect memory of what was going on in my mind.
The judge caught me
    by surprise when he raised that. I thought it was a valid thing for him to
    raise.
I thought it was in [the appellants] interest that if we lost the
    motion, that the other evidence that [the appellant] had given was beneficial
    to him in things like sentence. [Emphasis added.]

(e)

Factual Findings on the Evidence of Ineffective Assistance

[68]

Comparing the competing accounts by the
    appellant and trial counsel against the backdrop of the trial transcript, I am
    able to reach the following conclusions:

·

the appellant and trial counsel had many
    discussions over the 39 months it took to bring this case to trial, yet trial
    counsel could not pinpoint when he discussed the blended procedure with the
    appellant;

·

the appellant understood that if he was
    unsuccessful on his s. 8
Charter
motion, he would be found guilty;

·

although an Agreed Statement of Facts was filed
    at trial, the appellants understanding of this document and any participation
    he may have had in its production, remained a question mark. Moreover, neither
    in his affidavit nor during cross-examination did trial counsel rely on the
    creation of this document to justify having the appellant admit his guilt under
    oath;

·

the excerpt from the trial transcript (at paras.
    26 and 35, above) and trial counsels cross-examination (at para. 67, above)
    strongly suggest that the first time he turned his mind to the possibility of a
    blended procedure was mid-trial, when the trial judge raised the issue. It is also
    clear from the record that, after the trial judge raised the issue, trial
    counsel did not consult with the appellant before answering the trial judges
    question and agreeing to a blended procedure; and

·

trial counsel did not explain, nor did the appellant
    understand, the concept of constructive possession as it related to all of the
    drugs found at his apartment.

(f)

Conclusions on Ineffective Assistance

[69]

I am satisfied that the appellant did not
    receive proper legal advice about his right to decide whether to testify, nor
    did he authorize the expanded use of his testimony. These failings resulted in
    an appearance of injustice that requires appellate intervention.

[70]

To begin with, the appellant was not made aware
    of the concept of constructive possession. He took to the witness stand and testified
    that about a fifth of the drugs seized belonged to him; the rest belonged
    to his friend. The trial judge rejected this factual assertion as untrue. But
    it did not matter who
owned
the drugs in these circumstances  as a result of the appellants
    admitted control over his apartment, and his knowledge that his friends drugs
    were being stored there, he would have been guilty by virtue of constructive
    possession: see
Criminal Code
, R.S.C. 1985, c. C-46, s. 4(3);
R. v.
    Morelli
, 2010 SCC 8, [2008] 1 S.C.R. 253, at para.
    17.

[71]

In light of this shortcoming in advice, the
    appellants decision to testify was not an informed one. To repeat the words of
    Doherty J.A. in
K.K.M
.
, at para. 91: An accused is denied
    his right to choose whether to testify when counsel actually makes the
    decision, or when counsel provides no advice or advice that is so wanting, as
    to preclude the accused from making a meaningful decision about testifying.

[72]

This misstep was compounded by trial counsels
    decision to convert the proceeding into a blended procedure, whereby the
    appellants sweeping (and unwitting) admission of guilt lost the protective
    shield of the
voir dire
. It was incumbent on trial counsel to discuss the issue with the
    appellant and to obtain instructions:
G.D.B
.
, at para. 34. Through a lack of proper
    professional advice, coupled with a failure to consult and obtain instructions,
    the appellant chose to testify on the
voir dire
, not knowing that his evidence would become the functional
    equivalent of a guilty plea, or a sworn confession, as his counsel
    characterized it on appeal.

[73]

I wish to be clear that the trial judges
    inquiry about a blended procedure was proper and timely. The cross-examination
    of the appellant had taken the
voir dire
in a different direction, having little to do with the warrant, and
    mostly focused on the appellants drug dealing activities. But this was
    predictable. In the circumstances, trial counsel ought to have paused, both for
    the purposes of consulting with the appellant, and to review the appellants just-completed
    testimony with him before making the critical decision to have it apply to the
    trial proper. By any measure, the appellants cross-examination went terribly.
    This is confirmed by the trial judges numerous and adverse credibility
    findings (see para. 37, above).

[74]

The appellants trial became unfair because he received
    inadequate legal advice. I accept that the case against him was considerable.
    Once the drugs were admitted, a conviction was inevitable. But the appellant
    was still entitled to competent advice in negotiating the criminal trial
    process. As noted above, although he is an intelligent man, this was the first
    time he had been charged with an offence. He needed to understand the legal
    implications of his version of events, whereby he effectively confessed to
    possessing over $100,000 worth of cocaine. He did so believing that his own
    evidence could not be used against him when it came time to determine his
    ultimate guilt or innocence.

[75]

The case was serious and the evidence was
    strong. Nevertheless, to let this result stand in light of what happened at trial
    would gut the right to effective assistance at a criminal trial, which is seen
    as a principle of fundamental justice: see
G.D.B
.
, at paras. 24-25;
Joanisse
, at p. 57.

[76]

In concluding this ground of appeal, I wish to
    comment on trial counsels failure to obtain written instructions from the
    appellant about the decision to testify. In
R. v.
    W.E.B
.
, 2012 ONCA
    776, 366 D.L.R. (4th) 690, affd 2014 SCC 2, [2014] 1 S.C.R. 34, this court
    recognized that the failure to obtain written instructions is a question of
    professional prudence, not incompetence, but noted that the failure to do so is
    ill-advised and contrary to counsels best interests: at para. 10. See also
R. v. Shofman
, 2015 ONSC 6876, 90
    M.V.R. (6th) 257, at para. 48.

[77]

The lawyer who fails to obtain written
    instructions risks exposure to unfounded allegations of unprofessionalism: see
    Christine Mainville, Professionally Serving and Managing Clients: Defence
    Counsels Role in the Solicitor-Client Relationship,
For the Defence
, 39:3 (13 February 2019),
    at p. 9. And although not indicative of ineffectiveness itself, the failure to
    obtain instructions may undercut trial counsels attempts to defend against
    claims of ineffectiveness.

[78]

The failure to obtain written instructions also
    makes it more difficult for an appellate court to adjudicate claims such as the
    one advanced on this appeal: see
R. v. Hamzehali
, 2017 BCCA 290, 350 C.C.C. (3d) 71, at para. 76, leave to appeal
    refused, [2017] S.C.C.A. No. 380, and
R. v. Wells
(2001), 2001 CanLII 24130 (Ont. C.A.), at para. 61. Written
    instructions may resolve competing claims on appeal. In
R. v. Archer
(2006), 202 C.C.C. (3d) 60
    (Ont. C.A.), Doherty J.A. observed, at para. 143, The largest hurdle faced by
    the appellant in trying to convince the court that the decision to testify was
    made by trial counsel is the direction signed by the appellant during the
    trial. Similarly, in
Faudar
, at para. 82, Tulloch J.A. referred to a reporting letter sent by
    trial counsel about the perils of constructive possession. The same approach
    would also have been helpful in this case, avoiding the necessity of dueling
    affidavits and cross-examinations.

E.

Disposition

[79]

I would allow the appeal, set aside the
    conviction, and order a new trial.

Released: June
    3, 2021 KF

Gary Trotter J.A.

I agree. K. Feldman J.A.

I agree. P. Lauwers J.A.





[1]

Neither Mr. Bottomley nor Ms.
Vanderheyden.



[2]

For example, he said: I do not accept Mr. Troughts
    explanation for renting a car through an intermediary (para. 41); I do not
    believe him in relation to only 500 grams of cocaine belonging to him (para.
    42); Mr. Troughts innocent explanation that the notebook referred to gym
    promotions is simply not worthy of belief (para. 42); I found [his] evidence
    to be contrived in relation to meeting visitors in the lobby of his building
    (para. 43). He later referred to the appellants evidence as a whole as being
    highly suspect (para. 55).


