



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Faudar, 2021 ONCA 226

DATE: 20210413

DOCKET: C64030

Watt,
    Tulloch and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Kevin
    Faudar

Appellant

R. Craig Bottomley and Andrea
    Vanderheyden, for the appellant

Catherine Weiler, for the respondent

Heard: September 16, 2020 by video conference

On appeal
    from the conviction entered on January 25, 2017 and the sentence imposed on June
    15, 2017 by Justice Nancy L. Backhouse of the Ontario Superior Court, sitting
    without a jury.

Tulloch J.A.:

A.

Introduction

[1]

On April 13, 2014, police executed a search
    warrant at the appellants family home. They located a large .44 Magnum Taurus handgun
    with live ammunition in a small dresser in the appellants bedroom.

[2]

According to the appellant, his friend, X.Y.,
    placed the handgun and live ammunition in the appellants music studio, unbeknownst
    to him. When the appellant learned that the gun and ammunition were in his studio,
    he decided to move the items into his locked bedroom for temporary safekeeping.
    Unfortunately for the appellant, five days later, police searched his residence
    and seized the items.

[3]

While the appellant contends that the gun and
    ammunition belonged to his friend and not him, he did not turn the items into
    the police nor did he insist that they be removed immediately from his
    possession upon discovering them in his studio. In other words, based on the
    factual narrative of this case, there was no doubt that the appellant was
    knowingly in possession of the gun and ammunition, and that he had no licence
    or authorization to possess such items. To compound the problem with the
    possession of the firearm and ammunition, the appellant also had what appeared
    to be drug trafficking paraphernalia in his possession.

[4]

The appellant was charged with various firearms
    offences. Following a judge-alone trial, the appellant was found guilty of all
    charges and subsequently sentenced to 2 years and 3 months incarceration, less
    114 days credit for time served.

[5]

The appellant now appeals his convictions on the
    basis that he received ineffective assistance of counsel at trial, resulting in
    a miscarriage of justice. He advances three main reasons for this position:

i.

The appellants counsel previously represented his
    friend, X.Y., which placed the appellants counsel into a conflict of interest
    that negatively affected the appellants trial;

ii.

The appellants counsel improperly advised the
    appellant to testify at his trial and his testimony ensured his own conviction;
    and

iii.

The representation by the appellants counsel at
    trial was ineffective.

[6]

Following the convictions, both the appellant
    and his defence counsel provided affidavits and oral testimony, which form the
    basis of a fresh evidence application at this appeal. Since the appellant seeks
    to set aside his convictions on the basis of ineffective assistance of counsel,
    it is in the interests of justice to consider the fresh evidence:
R. v. W. (W.)
(1995), 25 O.R. (3d) 161 (Ont. C.A.), at pp. 169-170.

[7]

For the reasons that follow, I would dismiss the
    conviction appeal.

[8]

In his notice of appeal, the appellant asks for
    leave to appeal his sentence. It appears that he has since abandoned his
    sentencing appeal. Accordingly, I would also dismiss the sentencing appeal as
    abandoned.

B.

Background Facts

I.

Events Leading Up to the Search Warrant and
    Arrest

[9]

The appellant lived at a home with his parents,
    grandparents, two younger siblings and uncle. At the back of the home, there
    was a shed that he had converted into a music studio.

[10]

As indicated earlier, X.Y. was the appellants
    friend. On April 8, 2014, X.Y. texted the appellant to advise that he had left
    something in the music studio. X.Y. asked the appellant to keep it safe for him
    until he could retrieve it upon his return to Toronto; he was headed to the
    United States for a short trip. The appellant found out that the something
    that X.Y. had left behind was a gun. The appellant was upset, and texted X.Y.
    to ask that he retrieve the weapon as soon as he returned to the city. He also condemned
    X.Y. for leaving the firearm at his residence and ended their friendship. The
    appellant had an additional reason to be upset: X.Y. was aware that the
    appellant was under a court order prohibiting him from possessing weapons at
    the time.

[11]

The appellant moved the firearm into his bedroom
    for safe keeping, as people freely filtered in and out of the music studio and
    his bedroom had a locked door.

[12]

On April 13, 2014, X.Y. contacted the appellant
    to advise him that he was back in town and would collect his gun. On that same
    day, the Toronto Police Service executed a search warrant at the appellants
    home. The telewarrant had been issued pursuant to s. 11 of the
Controlled
    Drugs and Substances Act,
S.C. 1996, c. 19, (CDSA) to search for drug
    related items. The basis for the search was a tip from a confidential
    informant. The police did not find any narcotics, but as noted above, they did
    find the firearm and ammunition. Thus, as a result of the search, the appellant
    was charged with a number of weapons related charges.

[13]

X.Y. gave the appellants mother a phone number
    for a defence lawyer. Several years prior to the matter at issue, and when X.Y.
    was a youth, that same lawyer represented X.Y. at his own criminal trial. The
    appellant retained this lawyer for his trial knowing that he had previously
    represented X.Y.

II.

Evidence at the Preliminary Inquiry

[14]

A preliminary inquiry was held on September 8,
    2015. The parties agreed to tender the evidence from the preliminary hearing at
    trial, supplemented with some further evidence.

[15]

The evidence at the preliminary hearing
    indicated that before executing the search warrant, the police arrested the
    appellant outside his home for possession of cocaine and marijuana for the
    purpose of trafficking.

[16]

Soon thereafter, the appellants grandfather
    identified the appellants bedroom to the police officers. Inside, they found a
    .44 Magnum Taurus handgun in a dresser containing male clothing, as well as
    seven loose rounds of .44 calibre ammunition, a box of fifty .44 calibre
    ammunition, and a number of shotgun shells. A dresser in the room contained
    paperwork from the Canada Revenue Agency bearing the appellants name. A safe
    in the bedroom closet contained his passport, drivers licence and other forms
    of identification. Other items found in the bedroom included: a small digital
    scale, empty baggies, a collapsible baton, and a trigger lock that was found in
    another safe in the bedroom. The officers did not find any drugs in the
    appellants room or on his person.

[17]

Defence counsel cross-examined the police
    officers at the preliminary inquiry regarding the reason for the arrest, as
    well as the circumstances surrounding the search, both with respect to the
    purpose of the search warrant and the manner of its execution.

III.

The
Charter
Application

[18]

After the preliminary inquiry, the appellant
    brought an application under s. 8 of the
Canadian Charter of Rights and
    Freedoms
to exclude the evidence that the police obtained pursuant to the
    search warrant.

[19]

At the hearing of the
Charter
application, the appellants position was that the police used the
CDSA
search
    warrant as a guise to gain entry into the residence to conduct a search for firearms,
    rather than drugs. According to defence counsel, it followed that the information
    to obtain the search warrant did not contain full, fair and frank disclosure of
    the true purpose of the search. Further, defence counsel submitted that the
    warrant lacked reasonable grounds to believe that drug dealing was occurring on
    the premises and the officers improperly relied upon the telewarrant procedure.
    Lastly, defence counsel argued that the warrant had been improperly executed. Specifically,
    he alleged that the officers did not show the warrant to the appellant or any
    of the other occupants of the residence upon request, in contravention of s.
    29(2) of the
Criminal Code,
R.S.C., 1985, c. C-46
.

[20]

The appellant also sought to reveal the identity
    of the confidential informant, pursuant to the innocence at stake exception to
    informer privilege. Defence counsel argued that X.Y., or someone he knew, had
    planted the gun and informed the police on the appellant.

[21]

On January 18, 2017, the judge dismissed the
    appellants application, finding that the warrant had been properly obtained
    and executed. She further concluded that there was full, fair, and frank
    disclosure in the information to obtain.

[22]

The application judge also found that the
    appellants submissions on the innocence at stake exception failed to meet the
    high threshold necessary to reveal the identity of the confidential informant.

IV.

The Judicial Pretrial

[23]

After receiving the decision denying the
Charter
application, defence counsel arranged to conduct a judicial pretrial with
    another judge. The judicial pretrial was held that afternoon. In the pretrial,
    the Crown made an offer of a three-year sentence in exchange for a guilty plea
    to a breach of s. 95(1) of the
Criminal Code
. Defence counsel rejected
    the Crowns offer and instead elected to proceed to trial before the application
    judge.

V.

The Trial

[24]

The Crowns case began on January 18, 2017. The
    Crown called two officers who took part in the search and who had already
    testified at the preliminary inquiry.

[25]

In his cross-examination of the two officers, defence
    counsel essentially asked one question: did the police use sniffer dogs when
    exercising the search warrant? The officers answered no.

[26]

The defence case began on January 19, 2017. Defence
    counsel requested a brief adjournment so that he could locate X.Y. and serve
    him with a subpoena to testify. The trial judge denied the adjournment request,
    reasoning that defence counsel should have served X.Y. with the subpoena in
    advance.

[27]

The appellant then testified. He explained the
    circumstances under which X.Y. had left the gun at his home. The appellant
    noted that he did not ask for the gun to be left there, nor did he want it left
    there. He was angry with X.Y. for ever putting him or his family in this
    position. The appellant moved the gun from the music studio to his bedroom
    where it would be safer because fewer people would have access to it.

[28]

The appellant also testified about why he did
    not bring the firearm to the police station. First, the appellant testified
    that he was afraid of retribution from X.Y. if he did return the gun and he did
    not want to be known as a snitch in the neighbourhood. Second, the appellant
    was afraid to turn the gun in because he had witnessed police officers beat his
    friend to death. He had also had other negative interactions with the police,
    which led him to fear that the police would try to pin it on him.

[29]

The appellant also testified that the scale and
    baggies found in his room were for his jewellery business and were not related
    to drug trafficking. He indicated that he used the sealed baggies to contain
    earrings, chains and other items that he sold at a flea market; and he used the
    scale to measure the weights of different earrings. He denied ever selling
    marijuana or cocaine from his house. He also denied ownership of the extendable
    baton and trigger lock, both of which police found in his bedroom.

[30]

Defence counsel again requested an adjournment
    of the trial to locate X.Y. on January 20, 2017. The application judge again
    denied the request.

[31]

In his closing statement, defence counsel
    alleged a conspiracy between the Crown and the police to frame the appellant. He
    indicated that the firearm would not be in the appellants residence but for the
    involvement of police and the alleged confidential informant, X.Y. He also argued
    that the appellant had no ill-intention with respect to the firearm and in fact
    repudiated X.Y. for leaving it at his residence in the first place. Furthermore,
    defence counsel argued that the appellant exercised a quasi-public function by moving
    the firearm from an insecure location to his bedroom until X.Y. could pick it
    up. According to defence counsel, the appellant did all that he could to take
    innocent possession of that firearm.

VI.

The Decision of the Trial Judge

[32]

The trial judge rejected the appellants defence
    and convicted the appellant of five firearms offences: (1) possession of a
    loaded, restricted firearm, together with readily accessible ammunition,
    without a licence or registration certificate (
Criminal Code,
s.
    95(1)); (2) possession of a firearm knowing its possession is unauthorized (
Criminal
    Code,
s. 92(1)); (3) unlawful possession of a firearm (
Criminal Code,
s.
    91(1)); (4) possession of a firearm while prohibited from doing so (
Criminal
    Code,
s. 117.011); and (5) careless storage of ammunition (
Criminal
    Code,
s. 86.1). As noted above, he received a sentence of two years and
    three months imprisonment, less time served.

[33]

The trial judge found no evidence to support the
    defence theory that anything was planted or that the police had orchestrated a
    conspiracy or entrapment scheme against the appellant.

[34]

The trial judge further concluded that this was
    not a case of innocent possession. While recognizing that the firearm and
    ammunition may have fallen into the accuseds possession without his knowledge
    initially, the trial judge found that: after he became aware of the items, all
    of the decisions were made by him. Specifically, the appellant knew that
    possessing the firearm and ammunition was illegal. In fact, he was under a
    firearm prohibition at the material time. Moreover, the appellant had knowledge,
    personal possession and control of the firearm and ammunition over a five-day
    period after he became aware that they had been left in his music studio; and
    the appellants intention was to hand back a deadly weapon to X.Y., not to turn
    it into police or otherwise destroy it.

[35]

In coming to her decision, the trial judge noted
    that there was no identification found in the bedroom for anyone other than the
    accused. The bedroom also contained male adult clothing and other items,
    including the baggies and scale, which the appellant admitted were his. The
    trial judge found aspects of the appellants evidence not credible, including
    his testimony that he had no knowledge of the trigger lock and baton found in
    his bedroom.

C.

ISSUES TO BE DECIDED

[36]

As noted above, the only issue in this appeal is
    whether a miscarriage of justice occurred due to ineffective assistance of
    counsel. The appellant raises three concerns with respect to defence counsels assistance
    during the trial proceedings: (1) his representation of the appellant was
    negatively impacted by a conflict of interest arising from his previous
    representation of X.Y.; (2) he improperly encouraged the appellant to testify,
    ensuring his conviction; and (3) he represented the appellant in an ineffective
    manner. I will deal with each allegation in turn.

D.

CONFLICT OF INTEREST AND X.Y.S EVIDENCE

I.

Position of the Appellant

[37]

The appellant argues that defence counsel was in
    a conflict of interest when representing the appellant after previously
    representing X.Y., particularly in light of the alleged involvement of X.Y. in
    the case against the appellant. Again, the defence argued that X.Y. might have
    been the confidential informant or was an agent for the police when planting
    the firearm at the appellants home.

[38]

The appellant submits that representing both
    parties runs contrary to r. 3.4-10 of the Law Society of Ontarios
Rules of
    Professional Conduct,
which provides that a lawyer shall not act against a
    former client in the same matter, any related matter, or any other matter if
    the lawyer has relevant confidential information, unless the former client
    consents. In oral submissions, counsel for the appellant argued that X.Y.s
    matter was related to the case at bar because he was alleged to be a
    confidential informant against the appellant.

[39]

The appellant argues that defence counsel should
    have recognized that there was a conflict; he should have explained the
    conflict of interest and any related risks to the appellant; he should have
    obtained a waiver from both the appellant and X.Y.; and he should have required
    the appellant to obtain independent legal advice prior to retaining defence
    counsel. As the appellant points out, defence counsel did none of these things.

[40]

According to the appellant, the conflict could explain
    defence counsels failure to call X.Y. as a witness, to subpoena him in a
    timely manner, or to interview him as a witness. In light of defence counsels
    allegations against X.Y. in relation to this matter 
i.e
.
, that he was a confidential
    informant or planted the firearm  X.Y.s evidence was needed at trial. Defence
    counsel failed to obtain his evidence. According to the appellant, this was
    evidence of incompetent lawyering.

[41]

In making his submissions on this issue, the
    appellant relies on a decision of this court:
R. v. Baharloo
, 2017
    ONCA 362, 348 C.C.C. (3d) 64. In
Baharloo
, the court considered an
    ineffective assistance of counsel claim where trial counsel represented the
    alternate suspect giving rise to a potential conflict of interest. The
    appellant relies on the following passage from that decision:

[51]    At a minimum,
    before accepting a retainer from Banda in August 2012 to represent her on the
    possession of cocaine charge,
[trial counsel] was
    required to fully disclose to both the appellant and Banda the issues and risks
    associated with concurrent representation, secure their informed consent to
    concurrent representation, and reasonably conclude that she would be able to
    represent each client without adversely affecting the other
:
Neil
,
    at para. 29. That [trial counsel] did not do.

[52]    By accepting the
    retainer to act for Banda on the possession of cocaine charge, [trial counsel]
    put herself in an actual conflict of interest with respect to her
    representation of the appellant.
Her representation of
    the appellant, from that point forward at the latest, was tainted by impermissible
    divided loyalties and an actual conflict of interest
.

[53]    As this court
    stated in
W. (W.),
at p. 178,
the real
    issue on appeal in cases involving allegations of conflicts of interest arising
    out of the joint defence of co-accused will be whether there was an actual
    conflict of interests. If that conflict is demonstrated, the conclusion that at
    least one of the co-accused did not receive effective representation will
    follow in most cases. That applies with equal force to the present case, even
    though the retainers involved different matters and the appellant and Banda
    were not co-accused
.

[54]    Accordingly, the
    appellant has demonstrated that (i) an actual conflict of interest existed by
    [trial counsel]s concurrent representation of Banda and him, and (ii) that
    conflict impaired [trial counsel]s ability to represent effectively the
    appellants interests. It led [trial counsel] to fail to pursue a third party
    suspect defence which, in the circumstances, was a realistically available
    defence. The appellant has established a lack of effective assistance by trial
    counsel.

[55]    As a result of the
    ineffective assistance [trial counsel] provided to the appellant because of her
    conflict of interest, a miscarriage of justice occurred:
W. (W.),
at p. 173. The appellants conviction cannot stand.  [Emphasis added].

[42]

The appellant argues that this courts reasoning
    in
Baharloo
is apposite to the case at bar. Specifically, in this
    case, the appellant submits that defence counsel did not recognize the conflict,
    failed to ensure the appellant sought out independent legal advice, failed to
    obtain waivers from both clients, failed to apprise the appellant of the risks
    of the conflict, and then failed to ensure X.Y. gave evidence before putting the
    appellant on the stand. The appellant suggests that these facts constitute
    evidence of an actual conflict of interest that impaired trial counsels
    ability to represent the appellants interests effectively.

[43]

The appellant further relies on the following
    passage of a decision of this court in
R. v. Joanisse
, [1995] 102
    C.C.C. (3d) 35 (Ont. C.A.), at p. 62, leave to appeal refused, [1996] S.C.C.A.
    No. 347 (S.C.C.):

76.
The
    nature of the incompetence demonstrated will, in large measure, dictate the
    kind of inquiry required to determine the effect of that incompetence on the
    fairness of the trial. In some cases, counsel's incompetence rests in conduct
    which permeates and infects counsel's entire performance.
Where counsel's incompetence is pervasive, the focus must be on
    the effect of that incompetence on the fairness of the adjudicative process.




77.
The
    conflict of interests cases such as
R. v. Widdifield and Widdifield
,
supra
,
    provide a second example of ineffective representation which destroys the
    fairness of the adjudicative process at trial.
Where
    counsel represents competing interests at trial, and as a result, counsel's
    ability to represent either or both of those interests is adversely affected, a
    miscarriage of justice has occurred without any inquiry into the effect of the
    conflict on the reliability of the verdict. This is so because counsel's
    undivided loyalty to the client is an essential component of a fair adversarial
    process. Where counsel's loyalty is divided and the client suffers as a
    consequence, the adversarial dynamic of the trial is lost and with it the
    fairness of the trial:

R. v. Dunbar and Logan
(1982), 68
    C.C.C. (2d) 13 at 47-48 (Ont. C.A.);
U.S. v. Decoster
, supra, per
    MacKinnon J. concurring at pp. 235-237. [Emphasis added].

[44]

The appellant argues that the failure to
    subpoena a central witness for the defence in a timely manner was evidence of
    how the conflict and incompetence undermined the fairness of the adversarial
    trial process.

[45]

The appellant argues that the conflict of
    interest with respect to X.Y. contributed to a miscarriage of justice. Consequently,
    he contends that the convictions should be set aside, and a new trial ordered.

II.

Position of the Crown

[46]

At the outset, the Crown notes that the
    appellant was aware that his lawyer had previously represented X.Y. when the
    appellant retained him, and the prior representation of X.Y. happened years
    before, for a completely unrelated matter.

[47]

The Crown argues that r. 3.4-10 of the
Rules
    of Professional Conduct
allows a lawyer to act against a former client on
    an unrelated matter where there is no risk that the confidential information obtained
    during the representation of the former client would be used in the new
    representation. According to the Crown, this was an unrelated matter and defence
    counsel did not learn any confidential information from X.Y. during the course
    of his unrelated, earlier retainer that could have been used in his
    representation of the appellant. Therefore, the Crown submits that defence
    counsel did not act in contravention of the
Rules of Professional Conduct.

[48]

Moreover, the Crown submits that the appellant
    has not established that there was an actual conflict of interest. The Crown
    argues that defence counsel acted with undivided loyalty towards the appellant:
    first, he subpoenaed X.Y. to testify; and second, he vigorously argued at trial
    that X.Y. was the confidential informant.

[49]

Further, the Crown asserts that the timing of X.Y.s
    subpoena did not amount to incompetence. Defence counsel explained that he did
    not seek to subpoena X.Y. until he felt it was absolutely necessary, which was
    after the judge dismissed the s. 8
Charter
application on January 18,
    2017. Defence counsel twice requested an adjournment so that he could serve X.Y.
    with a subpoena to secure his attendance to testify. The trial judge rejected
    both of these requests.

[50]

According to the Crown, X.Y. ultimately was
    served with the subpoena and he appeared on January 20, 2017, but the
    proceedings had already been adjourned for the day. X.Y. attended again on
    January 25, 2017, when the trial judge was to issue her decision. Although she
    was aware of X.Y.s presence, the trial judge was unwilling to revisit her
    earlier ruling given the limited relevance of his evidence.

[51]

The Crown argues that X.Y.s evidence would have
    been of limited relevance and would not have exculpated the appellant nor
    eliminated the need for him to testify. The text message exchange between X.Y.
    and the appellant tendered on the s. 8 application already indicated that X.Y.
    left the gun at the appellants home without the appellants consent.

[52]

The Crown submits that even assuming X.Y.
    testified consistently with the text messages, at most, X.Y.s evidence would
    have confirmed that he left the gun in the appellants music studio and
    eventually told the appellant that he had done so. Given that the gun was found
    in the appellants bedroom, there would have been an undeniable inference that
    the appellant moved the gun from the studio to his bedroom. X.Y.s testimony
    would have confirmed both the appellants personal possession in moving the
    firearm and his constructive possession of it.

[53]

The Crown also points out that the trial judge
    found X.Y.s anticipated evidence to be irrelevant to the issues in the trial
    proper, short of questions suggesting that he might be the confidential
    informant, which defence counsel was not permitted to ask having failed on the
    innocence at stake application.

[54]

The Crown distinguishes the facts in
Baharloo
from the current matter. According to the Crown, unlike the current matter, the
    appellant in
Baharloo
was unaware of the prior representation of the
    potential third party suspect, and the retainers of Mr. Baharloo and the
    potential third party suspect substantially overlapped and were factually
    related.

III.

Analysis

[55]

A lawyer owes a duty to their client to avoid
    conflicts of interest:
Baharloo,
at para. 31
.
Section 1.1-1
    of the Law Society of Ontarios
Rules of Professional Conduct
defines
    a conflict of interest as a substantial risk that a lawyers loyalty to, or
    representation of, a client would be materially and adversely affected by the
    lawyers duties to a former client.

[56]

The rule against conflicts guards against two
    forms of prejudice: first, there is prejudice as a result of the lawyer's
    misuse of confidential information obtained from a client; and second, there
    is prejudice arising where the lawyer soft peddles his representation of a
    client in order to serve his own interests, those of another client, or those
    of a third person:
Canadian National Railway Co. v. McKercher
    LLP
, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 23.

[57]

With respect to former clients, lawyers must
    refrain from misusing confidential information. Whereas, for current clients,
    lawyers must not misuse confidential information, nor place themselves in a
    situation that jeopardizes effective representation:
Canadian National
    Railway Co.
, at para. 23.

[58]

A lawyer can render effective assistance only
    when that lawyer champions the accuseds cause with undivided loyalty:
W. (W.)
,

at p. 13. Effective representation may be threatened where a lawyer is
    tempted to prefer other interests over those of their client:
Canadian
    National Railway Co.
, at para. 26. As this court wrote in
R. v.
    McCallen
(1999), 43 O.R. (3d) 56 (C.A.), at p. 67, cited with approval by
    the Supreme Court in
R. v. Neil,
2002 SCC 70, [2002] 3 S.C.R. 631, at
    para. 12: There should be no room for doubt about counsel's loyalty and
    dedication to the client's case. A lawyers duty of loyalty to their client is
    foundational to the adversarial system and essential to the integrity of the
    administration of justice:
Neil
, at para. 12.

[59]

This court has identified specific criteria to
    determine where a conflict of interest causes a denial of the accuseds
    constitutional right to make a full answer and defence, and results in a
    miscarriage of justice. As Doherty J.A. wrote in
W. (W.)
,

at
    pp. 15-16, the appellant must show:

i.

an actual conflict of interest between the
    respective interests represented by counsel; and

ii.

as a result of that conflict, some impairment of
    counsels ability to represent effectively the interests of the appellant.

[60]

If both criteria are established, then the
    appellant has been denied the right to make full answer and defence and a
    miscarriage of justice has occurred:
W. (W.),
at p. 16.

[61]

It is not enough simply to have an appearance of
    a conflict. The court must determine whether counsels representation was, in
    fact, adversely affected. The concern on appeal must be with what happened and
    not what might have happened:
W. (W.)
, at pp. 17-19.

[62]

The cases provided by the parties on this issue,
    namely
Baharloo
and
W. (W.),
consider the issue of a
    potential conflict of interest with another current client, as opposed to a
    former client. However, if the trial counsels representation of an accused may
    be compromised by a duty to a former client, counsel should first advise the
    new client and obtain their consent. If counsel believes that the duty to the
    former client actually will compromise the new retainer, then the lawyer should
    decline to accept the case.

[63]

The appellants fresh evidence affidavit
    confirms that after he was arrested in this matter, X.Y. came to his home to
    provide his mother with defence counsels phone number. The appellant retained defence
    counsel knowing of his prior representation of X.Y. The appellant accepted the
    referral from the very same person he would accuse of being a confidential
    informant against him. Defence counsel did not need to advise the appellant of
    the former retainer since it was common knowledge that the appellant was
    already aware of it.

[64]

Defence counsel owed a duty to X.Y. as a former
    client, at least with regard to not misusing information obtained as a result
    of the former retainer:
Canadian National Railway Co.,
at para. 23.
    Even where there is no such risk, it would be preferable not to act against a
    former client. However, the concern in this appeal is not the duty to X.Y.; it
    is the duty to the appellant.

[65]

On the face of it, there was a potential conflict
    of interest between defence counsels representation of the appellant and his
    past representation of X.Y. due to the nature of the argument advanced at
    trial:
i.e
.,
that X.Y.
    was either a confidential informant or planted the firearm at the behest of the
    police. Given the nature of the defence theory, and the potential for a
    conflict, it would have been preferable for defence counsel to decline to
    represent the appellant in this matter.

[66]

However, I am not persuaded that defence counsels
    prior representation of X.Y. manifested in an actual conflict that impaired
    trial fairness. On a review of the full trial record, it does not appear that defence
    counsel was torn by any feeling of divided loyalty. Defence counsel was willing
    to require X.Y. to attend at trial. The appellant admitted that defence counsel
    retained a private investigator to try to locate X.Y. to serve him with a
    subpoena. X.Y. was subpoenaed to testify, albeit late in the process. Again,
    the concern on appeal is whether a conflict of interest actually compromised
    representation; the appellate court is not concerned with mere possibilities.

[67]

Even if he had testified, X.Y.s evidence would,
    at best, corroborate the appellants explanation that he was the unwilling
    recipient of a gun left at his home. There was not much else to be gained from X.Y.s
    testimony at that point in the proceedings. Again, the outcome of the
    innocence-at-stake application prevented counsel from exploring the issue of
    the confidential informant in the examination of X.Y.

[68]

As a result, despite any potential for conflict
    of interest in this case, it did not affect the trial nor result in any
    miscarriage of justice.

[69]

I would dismiss this ground of appeal.

E.

The decision to testify

I.

Position of the Appellant

[70]

In the affidavit tendered as part of the fresh
    evidence application, the appellant indicated that he and defence counsel
    discussed his testimony and the innocent possession defence for the first time
    just before trial. Defence counsel insisted that the appellant testify. The
    appellant did not want to testify.

[71]

In the appellants testimony at trial, he
    reiterated that: he had control over the bedroom where he stored the gun, he
    consented to it being there, and he was planning to give the gun back to X.Y.
    In short, the appellant contends that his testimony was a complete confession
    that ensured his conviction of the offences charged. According to the
    appellant, it follows that his convictions rest on the ineffective assistance
    of counsel.

[72]

The appellants position is that defence counsel
    never should have advised him to testify since his evidence provided all that
    was needed to convict him on the basis of the doctrine of constructive
    possession. According to the appellant, a reasonably competent lawyer would
    have advised the appellant to sit silently and let the Crown prove its case
    against him, as the innocent possession defence had virtually no chance of
    success on these facts.

II.

Position of the Crown

[73]

The Crown argues that the appellant made an
    informed decision to testify in this case. Defence counsels evidence was that
    he did, in fact, inform the appellant that he did not need to testify. Additionally,
    the Crown contends that the appellant would have known that he had the right
    not to testify. The appellant had four prior criminal trials, with three prior
    lawyers, and he did not testify at any of those trials.

[74]

Given that the s. 8 application was unsuccessful,
    it is the Crowns position that the appellants convictions were virtually
    certain on the basis of constructive possession regardless of whether the
    appellant testified, due to the strong circumstantial case against him. The
    Crown submits that there were seven pieces of circumstantial evidence upon
    which the court could draw the inference beyond a reasonable doubt that the
    appellant was aware of the firearm and ammunition found in his bedroom and that
    he had a measure of control over it:

1.

The firearm and a substantial amount of ammunition
    were found in a bedroom identified by the appellants grandfather as belonging
    to the appellant.

2.

Police found CRA paperwork bearing the
    appellants name in the top drawer of one of the dressers in the bedroom,
    indicating he stored items belonging to him in the dressers in the bedroom.

3.

The bag containing the firearm and ammunition
    was immediately visible when the police officer opened a drawer in the second
    dresser in the bedroom.

4.

The bedroom contained adult, male clothing. The
    bag containing the firearm and ammunition was situated on top of male clothing
    in the dresser drawer.

5.

In a different drawer of the same dresser that
    contained the firearm, police found a second weapon  an extendable baton.

6.

A safe in the closet of the bedroom contained
    the appellants passport, drivers licence, SIN card and health card. A trigger
    lock for a gun was also found in a safe in the bedroom.

7.

Paraphernalia consistent with drug dealing was
    found in the bedroom, including a digital scale and a quantity of small ziplock
    baggies.

[75]

The Crown argues that it was extremely unlikely
    for the court to find another reasonable inference other than guilt on these
    facts.

[76]

The Crown submits that there was no downside to
    testifying in this case. If the appellant did not testify, only the Crowns
    evidence would be before the trial judge. If the appellant testified, he could
    cast the evidence in the most favourable light. The Crown argues that testifying
    gave him a long shot at an acquittal if the trial judge accepted the innocent
    possession defence. At worst, testifying provided context for the gun being in
    his bedroom, explained the presence of the baggies and scale, and would be
    treated as mitigating factors on sentencing. The Crown states that it cannot be
    a miscarriage of justice for an accused to decide to testify and tell the
    truth.

[77]

The Crown points out that evidence from the
    accused is necessary to support an innocent possession defence. While the
    defence of innocent possession was a long shot, it could have succeeded, but
    only if the appellant testified. Accordingly, the Crown submits that defence
    counsels advice to testify was apt: testimony that acknowledged possession but
    proved innocent possession was the appellants best chance of an acquittal in
    this case.

[78]

The Crown argues that the mitigating impact of his
    testimony was borne out on sentencing. Again, the information the appellant
    supplied resulted in a sentence of two years and three months, which was less
    than the three-year plea deal offered by the Crown.

III.

Analysis

[79]

I do not accept that there was any failure of
    legal representation, nor any miscarriage of justice, in the appellants
    decision to testify at trial.

[80]

There is no dispute that it was the appellants
    inalienable right to sit silently at his trial and require the Crown to prove
    its case against him beyond a reasonable doubt. Part of counsels duty involves
    advising an accused whether to testify:
R. v. K.K.M.,
2020
    ONCA 736, at para. 62. A competent lawyer will offer sage advice in this
    regard, but only the client can make the ultimate decision as to whether the
    benefits of testifying outweigh the risks:
R. v. Stark
, 2017 ONCA 148,
    347 C.C.C. (3D) 73, at para. 17.

[81]

While it may very well be true that the
    appellant knew he did not need to testify due to his prior involvement with the
    justice system, this fact cannot displace the responsibility of counsel to
    ensure that an accused is apprised of their rights in a criminal trial. This
    responsibility remains with the lawyer no matter how many times a client has
    previously been committed to trial.

[82]

That being said, I am not persuaded that the
    appellants decision to testify was uninformed or involuntary. The appellant
    was fully aware of the considerable evidence against him. Defence counsel
    detailed the significant risk of a conviction on the basis of constructive
    possession in a reporting letter provided to the appellant prior to trial.

[83]

Defence counsel was right: the appellant was at a
    substantial risk of conviction on the basis of constructive possession if he
    failed to testify.

[84]

Constructive possession applies when an accused did
    not have physical custody of the object in question, but did have it in the
    actual possession or custody of another person or in any place, whether or
    not that place belongs to or is occupied by him, for the use or benefit of
    himself or of another person:
Criminal Code
, S. 4(3)(a);
R. v.
    Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17.

[85]

To establish constructive possession, the Crown
    must prove:

·

That the accused knew the character of the
    object;

·

That the accused knowingly put or kept the
    object in a particular place; and

·

That the accused intended to have the object in
    the particular place for his use or benefit or that of another:
Morelli
,
    at para. 17
; R. v. Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at paras.
    47-48.

[86]

There must be knowledge that discloses some
    measure of control over the item to be possessed:
R. v. Pham
(2005),
    77 O.R. (3d) 401 (Ont. C.A.), at paras. 14-15, affd 2006 SCC 26, [2006] 1
    S.C.R. 940. In many cases, the evidence relied upon to prove constructive
    possession is wholly or substantially circumstantial:
Lights
, at para.
    48.

[87]

Occupancy of premises alone does not create a
    presumption of possession, but it supports an inference of control when coupled
    with evidence of knowledge:
Lights
, at para. 50
,

R. v.
    Watson
, 2011 ONCA 437, at para. 13;
R. v. Lincoln
, 2012 ONCA
    542, at para. 3. The circumstantial evidence must tie the accused to the
    location such that the only reasonable inference is that the accused was aware
    of the contraband and had control over access to it:
Lights
, at paras.
    36, 98;
Pham,
at paras. 17-18, 25-29;
R. v. Dipnarine
, 2014
    ABCA 328, 316 C.C.C. (3d) 357, at paras. 17-20.

[88]

In this case, the police found the firearm and
    ammunition in a bedroom that the appellants grandfather identified as belonging
    to the appellant. The prohibited items were stored with adult male clothing,
    and the appellants identification. There was no identification found in the
    bedroom for anyone other than the accused. I agree with the Crown that there
    was ample circumstantial evidence pointing to constructive possession, even
    without the appellants testimony.

[89]

After the trial judge dismissed the s. 8
    application, the appellants only chance of succeeding was a defence of
    innocent possession.

[90]

The doctrine of innocent possession can provide
    a defence to an accused who technically had either constructive or personal
    possession of a prohibited item but lacked a blameworthy state of mind or
    blameworthy conduct:
R. v. Chalk
, 2007 ONCA 815, 88 O.R. (3d) 448, at
    para. 25. The rationale underlying this defence is that criminal liability
    should not attach to brief, innocent possession, where the intention is
    solely to divest oneself of control rather than to possess the prohibited item:
Chalk
, at para. 25.

[91]

The cases where innocent possession is a viable
    defence normally involve a person who takes control of contraband out of a
    sense of public duty: to prevent injury to others, to destroy the contraband,
    or to permanently move it beyond their control:
Chalk
, at para 23-25.
    The defence has been successful in situations that are comparable to that of the
    appellant, where the accused does not opt to turn the gun into the authorities,
    or destroy it:
R. v. Ali
, 2018 ONCJ 379, at paras. 55-56, 79-83;
R.
    v. Adedokun,
2018 ONSC 2138, at paras. 23-24, 31-35.

[92]

The defence of innocent possession in this case had
    a slim chance of success but was nonetheless arguable. Unfortunately for the
    appellant, the trial judge rejected the defence. Although the trial judge
    accepted that the gun fell into the appellants possession through no fault of
    his own, she did not accept that he acted out of a public duty in retaining the
    gun to return it to X.Y. She specifically rejected the appellants evidence
    that he feared retaliation from X.Y. if he got rid of the firearm. She also
    found that the appellant lied about not knowing about the baton and trigger
    lock in his bedroom.

[93]

The appellant turned down the plea deal offered
    by the Crown. He elected to take his chances at trial. He was convicted, as he
    was in his four prior trials where he did not testify. In this case, he
    succeeded in receiving a sentence that was lower than what the Crown had
    offered on a plea deal.

[94]

His counsel did not act ineffectively in
    advising the appellant to testify. It was his best chance at an acquittal once
    the trial judge dismissed the s. 8 application, and it succeeded in reducing
    his sentence.

[95]

I would dismiss this ground of appeal.

F.

Ineffective representation

I.

Position of the Appellant

[96]

The appellant argues that he was not properly
    represented at the trial itself. According to the appellant, trial counsels
    incompetence rendered the result of the trial unreliable, in that, absent the
    errors of counsel, the trier of fact may have come to a different conclusion.

[97]

He points to his counsels lack of cross-examination
    at the trial proper. Defence counsel asked only one question of each of the two
    police officers who testified. The appellant submits that failing to conduct
    meaningful cross-examination on the core issue of the case is the kind of
    incompetence that can require a new trial if the result
may
have been
    different.

[98]

The appellant also argues that defence counsel
    did not understand the basic tenets of constructive possession or innocent
    possession. According to the appellant, defence counsel put his client on the
    stand with no appreciation of the core issue at trial. In support of this
    argument, the appellant points to defence counsels submission that: I
    challenge the absolute foundation of my friends assertion that the possession
    is really whats at issue in this case. The appellant also relies upon
    counsels faltering response when questioned about the definitions of
    constructive possession and innocent possession in his subsequent
    cross-examination that formed part of the fresh evidence tendered for this
    appeal.

[99]

As noted above, the appellant maintains that defence
    counsels failure to issue a timely subpoena and his advice to the appellant to
    testify also amounted to incompetence.

II.

Position of the Crown

[100]

The Crown points out that the only two Crown witnesses at trial were
    already fully cross-examined by defence counsel at the preliminary inquiry and
    their evidence was entered into the trial record on consent. The Crown submits
    that any further evidence at trial from these two officers would not have
    yielded anything useful for the defence.

[101]

The Crown also takes issue with the appellants suggestion that defence
    counsel did not understand the elements of constructive possession and innocent
    possession at trial. The Crown points to the fact that defence counsel
    correctly referenced the leading case in his submissions, and fully informed
    the appellant about the risks of conviction on the basis of constructive
    possession in the reporting letter delivered prior to trial.

[102]

The Crown argues that counsels performance was reasonable in this
    case. It also submits that, even if it was imperfect, counsels failure to meet
    competence standards does not automatically lead to a reversal of a conviction.
    Here, the Crown contends that the appellant has failed to show how he was
    prejudiced by his counsels representation, such that it occasioned a
    miscarriage of justice.

III.

Analysis

[103]

The right to effective assistance of counsel is a principle of
    fundamental justice:
R. v. G.D.B
., 2000 SCC 22, 143 C.C.C. (3d) 289,
    at para. 24. As Doherty J.A. wrote in
Joanisse,
at p. 57:

Where counsel fails to provide effective representation,
    the fairness of the trial, measured both by reference to the reliability of the
    verdict and the adjudicative fairness of the process used to arrive at the
    verdict, suffers. In some cases the result will be a miscarriage of justice.

[104]

To succeed on a ground of appeal on the basis of ineffective
    assistance of counsel, an appellant must establish three elements:

i.

the facts on which the ineffectiveness claim is
    based on a balance of probabilities;

ii.

that the representation provided by trial
    counsel amounted to incompetence on a reasonableness standard (the performance
    component of the test); and

iii.

that the incompetent representation resulted in
    a miscarriage of justice (the prejudice component of the test):
Joanisse
,
    at p. 59;
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at
    paras. 119-120;
G.D.B
., at paras. 24, 26;
R. v. Hartling
,
    2020 ONCA 243, 150 O.R. (3d) 224, at paras. 73-74;
R. v. Cherrington
,
    2018 ONCA 653, at para. 25.

[105]

This test presents a high bar that is not easily met:
Cherrington,
at para. 25. The standard is not perfection. Rather, the court must
    measure counsels performance or competence against a reasonableness standard,
    having regard to the circumstances as they existed when the impugned acts or
    omissions occurred. Different lawyers may have run the trial differently, but
    that does not mean a trial counsels choices are incompetent. Appellate courts
    must give deference to the choices made by trial counsel and the benefit of
    hindsight plays no part in this assessment:
Joanisse
, at para. 72;
Archer,
at para. 119;
G.D.B
., at para. 27;
Hartling,
at para. 74.

[106]

Once the appellant has established the facts underpinning the claim
    of ineffectiveness under the first branch of the test, the analysis turns to
    the third branch  the prejudice component. If there was no prejudice, then it
    is undesirable for the court to proceed to the second branch, or the
    performance component, of the test:
G.D.B.,
at para. 29;
Hartling
,
    at para. 74. In regard to the prejudice element of the test, there are two ways
    to show prejudice:

1.

the appellant must establish that there is a reasonable probability
    that the verdict would have been different had he received effective legal
    representation; or

2.

he must show that his counsels conduct deprived
    him of a fair trial.

[107]

A reasonable probability is a probability sufficient to undermine
    confidence in the outcome:
Joanisse
, at paras. 74, 79-80;
Archer,
at para. 120;
R. v. Davies
, 2008 ONCA 209, 234 O.A.C. 291, at para.
    37.

[108]

If prejudice is made out, the court turns to the second branch  the
    performance component. The analysis under the second branch proceeds upon a
    strong presumption that counsels conduct fell within the wide parameters of
    reasonable professional assistance:
G.D.B.,
at para. 27;
Hartling
,
    at para. 74.

[109]

Turning to the facts at hand, I agree with the position of the
    Crown. I have not been persuaded that trial counsels alleged incompetence
    undermined the integrity or reliability of the verdicts, or that it rendered
    the trial unfair. Stated otherwise, the appellant has failed to establish
    prejudice.

[110]

The thrust of the defence at the trial proper was innocent
    possession, which required evidence of the appellants intention. It was
    advisable in the circumstances for the appellant to testify. This
    recommendation by counsel did not amount to incompetence.

[111]

Nor did counsels cross-examination rise to the level of
    incompetence. The police officers simply acted on a search warrant and
    identified what they found. The question posed in cross-examination as to
    whether they used sniffer dogs related to the allegation that the search
    warrant really was not about drugs, but to find the firearm planted by X.Y.
    This was consistent with the appellants position that he was framed. The
    cross-examination of the police officers from the preliminary inquiry was
    already before the judge. The failure to cross-examine further does not mean
    that the representation was incompetent, or that there was a miscarriage of
    justice.

[112]

Moreover, as I noted above, I do not think that the absence of a
    timely subpoena would have reasonably altered the course of the trial. While it
    was certainly inadvisable to leave the subpoena to the day the witness was
    supposed to testify, I am not persuaded that his testimony would have had an
    impact on the verdict. Again, his best shot at an acquittal was innocent
    possession, and the trial judge squarely rejected that defence based on a
    sufficient evidentiary record.

[113]

Furthermore, a review of the record demonstrates that defence
    counsel was competent with respect to his understanding of the legal concepts
    of constructive possession and innocent possession at the time of trial. His
    reporting letter and his submissions on the issue show his understanding. The
    quote referenced by the appellant  I challenge the absolute foundation of my
    friend's assertion that the possession is really what's at issue in this case
     is anomalous when contextualized with the full record. I would not accede to
    the appellants submission on this point.

[114]

Finally, defence counsels failure to issue a timely subpoena for X.Y.
    did not prejudice the appellant. As explained above, there was no reasonable
    probability that the verdict would have been different had X.Y. testified at
    trial. That said, while it did not rise to the level of ineffective assistance
    of counsel, leaving a subpoena until the last minute was certainly inadvisable.
    On different facts, a failure to issue a timely subpoena of a key witness could
    lead to an unfair trial.

[115]

I would dismiss this ground of appeal.

G.

Disposition

[116]

In summary, the appellant retained counsel on the recommendation of
    the very person the appellant accused of being a confidential informant against
    him, knowing that the recommended counsel previously represented that same
    person.  The appellant subsequently failed in his attempt to exclude the
    evidence of a gun and ammunition found in his bedroom, when the only
    identification found in that bedroom belonged to the appellant. The appellant
    was at substantial risk of conviction on the basis of constructive possession.
    The appellant unsuccessfully advanced a defence of innocent possession but was
    successful in receiving a lower sentence than was previously offered by the
    Crown. The convictions were not the result of any failure of representation,
    nor did they result from a miscarriage of justice.

[117]

The
    appeal is dismissed.

Released: April 13, 2021 D.W.

M. Tulloch J.A.

I agree. David Watt
    J.A.

I agree. L.B. Roberts
    J.A.


