



WARNING

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

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

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    the complainant or a witness shall not be published in any document or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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. M.Q., 2012 ONCA
    224

DATE: 20120410

DOCKET: C53717

Winkler C.J.O., Doherty and Goudge JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.Q.

Appellant

John Collins, for the appellant

James K. Stewart, for the respondent

Heard: January 11, 2012

On appeal from the conviction entered on January 26, 2010
    and the sentence imposed on August 12, 2010, by Justice S. Casey Hill of the Superior
    Court of Justice, sitting without a jury.

Goudge J.A.:

INTRODUCTION

[1]

The appellant was convicted by Hill J., sitting alone, of sexual
    assault, two counts of assault with a weapon and simple assault.  The
    complainant was his former wife.  He received a global sentence of five years
    in penitentiary.

[2]

He appeals both his conviction and his sentence.

[3]

On his conviction appeal, he argues that he did not receive a
    fair trial because his counsel had a fatal conflict of interest.  Prior to
    being retained by the appellant, his counsel had been consulted by the
    complainant about these very incidents.  The appellant says that when this came
    to light mid-trial, the trial judge erred in deciding to continue the trial and
    compounded the error following conviction by dismissing the appellants motion
    for a mistrial.

[4]

For the reasons that follow, I conclude that Hill J. dealt with
    the conflict issue entirely appropriately.  I would therefore dismiss the
    conviction appeal.

[5]

I would also dismiss the sentence appeal.

THE FACTS

[6]

The appellants trial began on August 4, 2009.  This was the
    fourth date fixed for trial.  His counsel, who began representing him in
    January 2009, was the fifth lawyer to act for the appellant in this matter.

[7]

The complainant was the first Crown witness.  Her evidence in
    chief took up the first day of trial.  She was cross-examined for most of the
    next day.  By the close of the third day, the Crown had completed its case.

[8]

At the opening of court on the fourth day of trial, August 7, the
    Crown told the trial judge that he had been advised the previous evening by the
    complainants mother that she and the complainant recognized defence counsel as
    the lawyer they had at one time consulted about these incidents.  Defence
    counsel immediately said that he had no recollection at all of this, and the
    appellant expressed his hope that his lawyer would continue to act for him.

[9]

The trial judge adjourned the trial so that an investigation
    could be undertaken by the Crown and the police, statements could be taken from
    the complainant and his mother, and independent legal advice for the appellant
    explored.

[10]

On August 10, Crown counsel advised that the investigation was
    complete. He indicated he was quite satisfied that, despite not recollecting
    meeting with the complainant, defence counsel had done so, and had a conflict
    of interest.  Nonetheless, the Crown wanted the trial to continue provided that
    the appellant agreed after receiving independent legal advice.

[11]

In the presence of the appellant, defence counsel informed the
    court that his client wished to continue the trial with him as counsel.

[12]

The trial judge made clear to both counsel that beyond the
    consent of the parties, the court was required to consider the impact on the
    broader issue of the appearance of justice.  He then adjourned the trial to the
    next day to facilitate independent legal advice for the appellant.

[13]

On August 11, Crown counsel again advised that he saw the matter
    as an innocent non-recollection on the part of defence counsel.  However, the
    investigation demonstrated that the complainant and her mother had met once,
    some two-and-a-half years earlier, with defence counsel.  They had reviewed in
    detail the incidents from which the charges arose, with a view to receiving
    legal advice, although they did not subsequently retain defence counsel.  Only
    after the close of the Crowns case did the complainant recall the meeting, as
    a result of prodding from her mother.

[14]

The court then heard from independent counsel for the appellant. 
    She had received full disclosure from the Crown and then had taken the time she
    required to meet with and advise the appellant.  She told the court that she
    had reviewed with the appellant the statements of the complainant and her
    mother, and provided him with legal advice.  She indicated that the appellant
    did not feel defence counsel was in a conflict position, wished him to
    continue, and waived any right he had arising from any conflict.  Independent
    counsel then tendered a written direction signed by the appellant indicating
    this and expressing his desire that his trial continue without requiring him to
    seek new counsel.

[15]

The trial judge asked if the complainant had also received
    independent legal advice.  When told that she had not, the trial judge required
    that this take place and adjourned the trial to permit it.

[16]

To avoid any risk to solicitor/client privilege, the Crown
    undertook to prepare a summary of the written statements taken from the
    complainant and her mother.  This, rather than the statements, was filed with
    the court prior to the trial resuming on September 25, 2009.

[17]

On that date, independent counsel for the complainant provided
    the court with a letter indicating that, after receiving his advice, she had no
    objection to the trial continuing with defence counsel acting for the
    appellant.

[18]

After hearing further submissions, the trial judge then ruled
    that the trial should continue.  The essence of his ruling is as follows:

I remain concerned about the appearance of justice issues that
    arise from what I believe to be a conflict, which has innocently arisen, but
    given the position of the parties, and the position of the complainant, and the
    fact that she has already spent time in the witness stand, I believe these
    factors weigh in favour of us continuing with the trial.

[19]

Following this ruling, the trial continued on November 6 and
    December 7, 2009, with evidence for the defence, including the appellants
    testimony and the submissions of counsel.  On January 26, 2010, the trial judge
    convicted the appellant of these charges.  On May 12, defence counsel was
    removed from the record because of a breakdown in the solicitor/client
    relationship.

[20]

The appellants new counsel then filed an application for a
    mistrial.  It was heard on August 12, 2010.  Both the appellant and the counsel
    who provided him with independent advice gave evidence.

[21]

The trial judge delivered his ruling the same day.  He noted the
    number of appearances required in this matter (15 in the Ontario Court of
    Justice and 48 in the Superior Court), and the length of time (over four and a
    half years) that the case had required.  He accepted the evidence of
    independent counsel that she had provided the advice necessary for the
    appellant to make a valid and informed decision.  The trial judge found that
    while the appellant may well have been motivated to agree to continue by the
    cost and stress of any retrial, he had not raised these matters at the time
    with independent counsel or the court.  The trial judge concluded succinctly:

He freely chose to make the decision that he did.

The applicant has failed to discharge the onus of why this case
    should be mistried.  I am unable to discover, on a complete reading of the
    record, any prejudice to the accused from the decision that he made.

...

Considering the entirety of the record in this case, including
    the application evidence, the court is led inexorably to the conclusion that
    the accuseds current complaint is the result of hindsight through the lens of
    the verdicts earlier rendered.

The application is dismissed.

[22]

Following the dismissal of the mistrial application, the court
    went on the same day to sentence the appellant to five years in penitentiary.

[23]

In this court, without objection from the Crown, the appellant
    tendered as fresh evidence on his conviction appeal the statements taken from
    the complainant and her mother.  These were not before the trial judge either
    mid-trial or on the mistrial application.

[24]

On his sentence appeal, the appellant tendered fresh evidence
    that although he is a citizen of Pakistan, he has now married a Canadian
    citizen, and they are expecting their first child in April 2010.

[25]

The appellant appeals his conviction on the basis that he did not
    receive a fair trial because his defence counsel was in an irreparable conflict
    of interest.  He appeals his sentence as harsh and excessive, and imposed
    without regard to his immigration status.

ANALYSIS

The Conviction Appeal

[26]

An accused who is represented by counsel at trial is entitled to
    the undivided loyalty of that counsel.  This principle is deeply embedded in
    Canadian law.  It has common law, statutory, and constitutional roots.  It is
    an important aspect of the right to effective counsel.  It is not only vital
    for the client.  It is essential to the integrity of the justice system and the
    confidence of the public in it: see
R. v. Widdifield
(1996), 25 O.R. (3d)
    161 (C.A.), at pp. 171-172.

[27]

The duty of undivided loyalty has as a central dimension the duty
    to avoid conflicting interests. Michel Proulx and David Layton in
Ethics
    and Canadian Criminal Law
(Toronto: Irwin Law, 2011) describe the duty
    this way, at pp. 290-291:

In criminal cases, the justification for prohibiting counsel
    from representing an accused while labouring under a conflict takes on
    constitutional dimensions.  By definition where counsel for the accused has an
    actual conflict of interest, the client suffers through representation by an
    advocate whose loyalty is suspect.  In such circumstances, and no matter how
    competent the conflicted lawyer, the accused has not been provided with
    effective counsel, which is itself a denial of fundamental justice and a
    violation of the
Canadian Charter of Rights and Freedoms
.

[28]

In
R. v. Neil
, 2002 SCC 70, [2002] 3 S.C.R. 631, at
    para. 31, Binnie J. described a conflicting interest as one creating a
    substantial risk that the lawyers representation of the client would be
    materially and adversely affected by the lawyers own interests or by the
    lawyers duties to another current client, a former client, or third person.

[29]

In this case, there is no dispute that defence counsel was
    burdened by an actual conflict of interest.  He had previously met with the
    complainant and her mother.  They had sought his legal advice about the very
    incidents that were the basis for the charges against his client.  He had
    received information from them about these incidents that he had a duty to keep
    in confidence.  That duty continued regardless of whether he was subsequently
    formally retained by them or not: see Proulx and Layton,
supra
at p.
    310.

[30]

Professor Alice Woolley in
Understanding Lawyers Ethics in
    Canada
(Markham: LexisNexis, 2011), at pp. 232-233, frames this conflict
    succinctly:

Either the lawyer will use the information, and violate his
    duty of confidentiality to the former client, or the lawyer will not use the
    information and violate his duty of zealous advocacy to his new client.

[31]

The question facing the trial judge was not whether defence
    counsel had a conflict, but what if anything to do about it.  As Binnie J. said
    in
Neil
,
supra
, at para. 36, it is one thing to demonstrate a
    breach of loyalty, but quite another to arrive at an appropriate remedy.

[32]

In this case the trial judge was faced with the conflict issue on
    two different occasions.  He quite rightly dealt with them somewhat
    differently.

[33]

The first occasion was mid-trial.  As Doherty J.A. described in
Widdifield
,
supra
, when the issue of conflict is raised before or during a trial,
    the court must be concerned not only with what has transpired, but also with
    the difficult assessment of what may transpire as the trial unfolds.  That may
    involve speculation about the future impact of an existing conflict or the risk
    that a conflict will arise as the trial proceeds.  In either case the waiver of
    the right to the undivided loyalty of counsel is not determining.  Ultimately
    the court must be guided by the interests of justice and the need for public
    confidence in trial fairness: see
R. v. Robillard
(1986), 28 C.C.C. (3d)
    22 (Ont. C.A.).  This may be so even where no waiver exists.

[34]

The second occasion followed conviction.  The role of the
    complainant and the question of guilt or innocence had been concluded.  Post
    trial the test is more onerous because it is no longer a matter of taking
    protective steps but of asking for the reversal of the courts judgment.  This
    requires not only a demonstration of counsels conflict but also that the
    conflict adversely affected counsels trial performance: see
Neil
,
supra
,
    at paras. 38-39.

[35]

I therefore propose to review separately each of the decisions
    made by the trial judge.  The appellant does not suggest that the trial judge
    utilized an erroneous legal principle in either case.  Rather the complaint is
    that he erred in finding the facts relevant to the issue and in the weight he
    attached to them, particularly in light of the fresh evidence.  It is argued
    that had he not done so, he would have reached the opposite result on both
    occasions.  Framed in this way, the argument is heavily fact-driven and
    suggests a deferential approach by this court to the decisions under review. 
    In the circumstances however, I find it unnecessary to dwell on the appropriate
    standard of appellate review because I agree entirely with both decisions made
    by the trial judge.

[36]

The mid-trial decision was necessitated when the conflict
    burdening defence counsel came to light at the close of the Crowns case. 
    Immediate investigation left no doubt that it was an actual conflict, and that
    it was serious.

[37]

In order to obtain the positions of both the appellant and the
    complainant on how to proceed, the trial judge moved expeditiously to obtain
    independent legal advice for each of them.  After receiving that advice, both
    were content to have the trial continue.  Indeed, the appellant sought to have
    the trial proceed with defence counsel as his counsel of choice.  The trial
    judge found these waivers to be both informed and voluntary, and nothing in the
    record at that point suggests otherwise.  Through this informed consent the
    accused was in effect advancing his fundamental constitutional right to
    counsel.  As such his waiver while not determinative had to be given
    significant weight.

[38]

Crown counsel urged that despite this conflict, the trial should
    proceed.  He argued that the absence of demonstrable adverse impact on the
    appellants defence together with the stage the trial had reached should
    dictate this result.  The appellant argues that the Crowns position should
    have been disregarded because it was based only on practical considerations despite
    such a stark conflict.  I do not agree.  In my view, these were perfectly
    relevant considerations.

[39]

Thus, the trial judge was faced with two parties who both wished
    the trial to proceed, and a complainant who did not oppose that.  Nonetheless
    the trial judge was rightly conscious of his overriding responsibility to
    ensure that a decision to proceed was consistent with the interests of justice
    and the maintenance of public confidence in the fairness of the trial.

[40]

In assessing these considerations, the trial judge was acutely
    aware of the point the trial had reached and what had transpired so far.

[41]

Defence counsel had participated to that point with no
    recollection of his prior meeting with the complainant and her mother.  There
    was no suggestion of bad faith, or of anything other than an innocent failure
    of memory.  Nothing in the record to that point suggests any adverse impact on
    defence counsels performance, nor any use of any information obtained in his
    prior meeting with the complainant.

[42]

Defence counsel had concluded his thorough cross-examination of
    the complainant.  There would be no future interaction between them.  The rest
    of the Crowns case had been completed as well.  All that remained was the
    defence evidence.  Thus, defence counsels conflict presented a substantially
    smaller risk of harm to the appellants interests going forward than it might
    have at the beginning of his trial.

[43]

The trial judge also had before him the tortured route this case
    had taken to trial.  The lengthy passage of time from the laying of charges and
    the number of lawyers who at various stages had represented the appellant,
    provided a difficult backdrop for any further delay that a mistrial order would
    necessitate.

[44]

Finally, the trial judge was aware that to declare a mistrial at
    this stage to permit a re-trial with different defence counsel would not only
    deny the appellant his counsel of choice, but would subject the complainant to
    repeating the unpleasant experience of giving evidence about these events.

[45]

In my view, in these circumstances the decision of the trial
    judge at that point to continue the trial cannot be faulted.  It served the
    interest of justice and the maintenance of public confidence in its fairness.

[46]

However, the appellant raises challenges to the mid-term ruling
    based on the fresh evidence and the evidence tendered on August 12, 2010 on the
    mistrial application, neither of which were available to the court when the
    mid-term ruling was made.  In my view, none of these challenges impair that
    decision in any way.

[47]

First, the appellant argues that if the trial judge had been
    given the statements of the complainant and her mother rather than a summary,
    it would have affected his finding that both the appellant and the Crown wished
    the trial to continue.  The simple answer to this is that although the trial
    judge did not have the statements, both the appellant and the Crown did when
    they advised the court of their desire to continue.  Had the trial judge had
    the statements it would have had no impact on his finding about their wishes.

[48]

Second, the appellant says that had the complainants assertion
    in her statement that defence counsel indicated to her that he knew the right
    people to talk to and would guarantee the appellants conviction been put
    before the trial judge, he would not have decided that the interest of justice
    could accommodate defence counsel continuing.  I do not agree.  Defence
    counsels recollection of the meeting was never obtained.  If he said what the
    complainant reported, it was clearly unprofessional.  However, without hearing
    from defence counsel, the trial judge was without any basis to make a finding
    that would result in his disqualification.

[49]

Third, the appellant says that the trial judge would not have
    found the appellants waiver informed and voluntary had he known that the
    appellants independent counsel was chosen by defence counsel, that they had
    jointly prepared the direction signed by the appellant, and that the appellant
    felt influenced in agreeing to proceed by the potential financial burden of a
    new trial.  I do not agree.  Neither being chosen by defence counsel, nor
    preparing the direction with him puts independent counsel in a relationship
    with defence counsel sufficient to taint her with his conflict.  Nor is there
    any other reason to challenge the professionalism of the advice she gave.  The
    voluntariness of the appellants waiver is not undermined by the financial
    considerations facing him at that stage.  There were simply part of the unavoidable
    reality of his situation.

[50]

Finally, the appellant says that the trial judge ought not to
    have paid any attention to the appellants signed direction because his lawyer
    had inserted a provision that there be no appeal based on conflict.  That
    provision was before the court mid-trial and is therefore not fresh evidence. 
    In addition, clearly this provision has had no effect.  Moreover, the appellant
    does not say that it affected his desire to have the trial proceed.  If
    anything it would have diminished that desire. In my view it was irrelevant to
    the factors the trial judge had to consider.

[51]

In summary, none of these arguments have merit in my view.  They
    provide no basis for altering the conclusion that the trial judges mid-trial
    decision was the right one.  This ground of appeal fails.

[52]

The appellants challenge to the dismissal of his application for
    a mistrial following his conviction can be readily disposed of.  Since the
    application was brought after conviction, the question for the trial judge was
    equivalent to that facing an appellate court when the conflict issue is raised
    for the first time on appeal, namely whether to set aside the conviction.  The
    same considerations apply.  To succeed the appellant had to not only
    demonstrate the conflict of interest but that it adversely affected defence
    counsels performance on his behalf at the trial.

[53]

In dismissing the application, the trial judge reviewed the
    relevant facts including the difficulties with delay and continuity of
    representation.  He set out the appellants choice to continue the trial and
    why it was voluntary and informed.  He then turned to the issue of prejudice to
    the appellants case.

[54]

Here the appellant offered nothing more than an assertion in his
    affidavit that during the presentation of his defence, he felt defence counsel
    was not giving his best effort.  However, the trial judge was in the best
    position to evaluate defence counsels performance at trial, and had the
    opportunity to review the entire record afterwards.  His conclusion was
    unequivocal: I am unable to discover on a complete reading of the record, any
    prejudice to the accused from the decision that he made.  There is no basis to
    question that finding in this court.  Given this finding the appeal from the
    dismissal of the mistrial application was doomed to failure.

[55]

For these reasons, the conviction appeal is dismissed.

The Sentence Appeal

[56]

The appellant was convicted of sexually assaulting the
    complainant over a period of months.  The trial judge found that the appellant
    routinely sexually assaulted his wife using both threats and force.  The sexual
    abuse included vaginal and anal rape, as well as forced fellatio.  The
    complainant was sexually objectified by the appellant who felt entitled to
    treat her this way just because she was his wife.  This pattern of abuse has
    resulted in continuing emotional and psychological consequences for the
    complainant.  The trial judge imposed a sentence of three and a half years for
    this offence.

[57]

The appellant was also convicted of two counts of assault with a
    weapon.  In each case he choked the complainant into unconsciousness.  The
    trial judge imposed consecutive sentences of nine months for each of these two
    convictions.

[58]

The appellant was also convicted of simple assault for slapping
    the complainant after an argument.  He received a concurrent sentence of one
    day for this offence.

[59]

The global sentence was therefore five years in penitentiary.

[60]

The appellant is a permanent resident in Canada.  This was known
    to the sentencing judge.  Since his sentencing, he has married a Canadian
    citizen and they are expecting a child in April 2012.  This was of course not
    known to the sentencing judge but was tendered as fresh evidence.

[61]

The appellant raises two arguments.  First he says that the global
    sentence is unfit.  I do not agree.  The appellant engaged in a pattern of
    serious sexual crimes against a vulnerable victim during an abusive marital
    relationship.  The trial judge took into account the mitigating factors
    including the appellants education, his employment history, and the absence of
    any criminal record.  However, the trial judge also properly took into account
    the extended time over which the abuse occurred, the serious consequences for
    the victim and the appellants abuse of trust, physical dominance and sense of
    cultural entitlement to treat his wife as he did.

[62]

In these circumstances, denunciation and deterrence were of
    paramount importance.  While the global sentence is at the upper end of the
    range, it is not unfit.

[63]

The appellants second argument is that the trial judge did not
    sufficiently consider his immigration status.  In support of this argument, the
    appellant points to the fresh evidence of his marriage and his expected child.

[64]

The trial judge was clearly aware that the appellant was not a
    Canadian citizen.  While the sentence imposed renders the appellant
    inadmissible to Canada and unable to appeal any removal order, the
    circumstances described in the fresh evidence may justify the humanitarian
    relief permitted by the immigration legislation.  That is for the Minister to
    decide.  In my view however, it is not a case where these circumstances should
    affect the appellants sentence.  The sentence imposed by the trial judge is
    fit.  Altering it to something less than two years so that the appellants
    right to appeal his removal order would be restored, would represent a very
    significant reduction unwarranted by the facts and proper sentencing
    principles.

[65]

I would therefore dismiss the sentence appeal.

Released: April 10, 2012 (D.D.)

S.T. Goudge J.A.

I agree Winkler C.J.O.

I agree Doherty J.A.


