



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), (2.1), (2.2), (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    that could identify the victim or a witness shall not be published in any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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right
    to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect
    of an offence other than an offence referred to in subsection (1), if the
    victim is under the age of 18 years, the presiding judge or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. V.J., 2017 ONCA 924

DATE: 20171201

DOCKET: C62692

Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

V.J.

Appellant

Courtney Keystone and Domenic Basile, for the appellant

Andreea Baiasu, for the respondent

Heard: October 31, 2017

On appeal from the convictions entered on June 9, 2015 by
    Justice Nancy J. Spies of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted after a three day
    trial, of various domestic violence offences against his wife. The charges were
    based on five alleged incidents occurring between September 2010 and August
    2012. The appellant was convicted on all nine charges, consisting of two counts
    of assault, three counts of assault with a weapon, two counts of uttering death
    threats, sexual assault, and unlawful confinement. He was sentenced to 35 months
    in prison. He appeals his convictions.

[2]

The appellants sole ground of appeal is ineffective
    assistance of counsel at trial resulting in a miscarriage of justice. The fresh
    evidence, admitted on consent of the Crown, consists of the affidavits of the
    appellant and his cousin, Ms. S, who both testified at trial, a transcript of
    the preliminary inquiry, a statement of agreed facts, and copies of email
    exchanges between Crown counsel and trial counsel. The appellants trial
    counsel did not provide an affidavit. He was ill when the allegation of
    ineffective assistance of counsel was made, and passed away shortly after the
    appellant perfected the appeal.

[3]

The appellant groups his ineffective assistance
    allegations into four categories: (1) inadequate legal advice; (2) inadequate
    trial preparation; (3) inadequate cross-examination of the complainant; and (4)
    failure to follow the rule in
Browne
    v. Dunn
,
when challenging the complainants evidence.

[4]

To succeed on his appeal the appellant must establish,
    on a balance of probabilities, that his counsels conduct fell below the
    standard of reasonable professional assistance, and that the ineffective
    representation resulted in a miscarriage of justice:
R. v. Joanisse
(1995), 85 O.A.C. 186, at
    paras. 69-71 and
R. v. Stark
,
    2017 ONCA 148, 35 C.R. (7th) 455, at paras. 12-14
.
There
    is a strong presumption that counsels conduct fell within the wide range of
    reasonable professional assistance: see
R.
    v. G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. A
    miscarriage of justice occurs where the ineffective representation undermines
    the appearance of fairness of the trial or the reliability of the verdict:
R. v. Archer
(2005), 203 O.A.C. 56, at
    para. 120;
Stark
, at para. 14.
    For a verdict to be unreliable, the appellant must demonstrate that, had
    counsel performed in a competent fashion, there is a reasonable possibility that
    the verdict would have been different:
Archer
,

at para. 120.
[1]


[5]

Because trial counsel did not respond to the particular allegations of
    incompetence, some of the appellants complaints about his performance are unchallenged.
    Others, however, can be tested by reference to the trial and preliminary
    inquiry transcripts, considered together with the trial judges reasons. The
    Crowns position is that the appellant has not established a reasonable
    possibility that he would have been acquitted of any of the offences absent the
    alleged deficiencies in his representation.

[6]

We will consider, in turn, each alleged deficiency in the appellants
    representation at trial, and its impact, if any, on trial fairness.

[7]

First, the appellant asserts that his trial
    counsel provided inadequate legal advice. He contends that he was not afforded
    the opportunity to give his evidence using an interpreter because counsel told
    him he was fine to testify without one. He also says that counsel did not
    explain his choice as to the mode of trial, including trial by jury, or seek
    his instructions on how he wished to proceed. He complains that counsel made
    bold and over-confident assertions, telling him that he would take care of the
    charges and not to worry.

[8]

These complaints are without merit.

[9]

The record does not support that the appellant
    needed an interpreter at trial, or that his ability to present his defence was
    in any way impaired by not having one. The complainant testified through a
    Punjabi-English interpreter and the same interpreter could easily have assisted
    the appellant. The appellant did not request assistance, nor did he complain of
    any difficulty in understanding the questions put to him, even after Crown
    counsel invited him to indicate if there was any question he did not
    understand. His contention on appeal that he had trouble understanding the
    questions and expressing himself at trial, is not borne out by a review of the
    transcript. The brief interchanges appellate counsel refers to, when read in
    context, do not support the contention that the appellant had difficulty
    communicating his evidence because of language difficulties. Nor do the trial
    judges reasons support the claim. Indeed, she recited in detail the evidence
    the appellant provided and commented that he gave his evidence in a very calm
    manner, was polite and showed no signs of stress.

[10]

We also do not accept the appellants argument
    that he was unfairly denied the right to choose his mode of trial, and that,
    relying on
Stark
, he is entitled to a new trial. In
Stark
, the appearance of
    trial fairness was undermined when the accused waived his right to a
    preliminary inquiry and a Superior Court trial without first receiving advice
    about his rights. His lawyer gave him neither advice nor a choice in his mode
    of trial. Here, by contrast, on the first day of the preliminary inquiry, after
    the information was read, the appellant himself waived the formal reading of
    the election, and his counsel indicated, on the record, that the appellant
    instructed him that he wishes to be tried by a judge in the Superior Court
    sitting without a jury. The appellant then had the benefit of the preliminary
    inquiry, which proceeded without objection on his part. The appellant has not
    claimed that he wanted a jury trial, that he did not understand he was waiving
    his right to a jury trial or that he was prejudiced in any way by not have a
    jury trial.

[11]

As for the assertion that trial counsel
    communicated to the appellant that he had nothing to worry about, while the
    Law Society cautions lawyers to be wary of bold and over-confident assurances
    to the client,
[2]
the
    appellant has not explained how this might have affected the outcome of the
    proceedings, nor is this apparent from a review of the trial record.

[12]

As his second complaint of inadequate assistance
    of trial counsel, the appellant asserts that neither he nor the other defence
    witness, Ms. S, was properly prepared by counsel to testify. While the
    appellant met with trial counsel several times, he contends that trial counsel neglected
    to discuss with him the details of the alleged incidents and the Crown
    disclosure, and to ascertain his version of the events. According to Ms. S,
    trial counsel met with her for only a few minutes before she testified, and did
    not prepare her for her evidence in chief or for cross-examination.

[13]

The appellant says that his evidence in chief
    was very brief, consisting mainly of denials of the complainants allegations,
    that he felt limited in what he could say, and that it was only under
    cross-examination that he provided details, which then attracted adverse
    comment in the trial judges reasons. The appellant also contends that the
    trial judge drew an adverse inference from his failure to recall the specifics
    of the complaint he made to police at the time the complainant was arrested for
    assaulting him. He blames this on trial counsels failure to review his police statement
    with him.

[14]

Again, we do not give effect to this argument. A
    fair reading of the trial proceedings reveals that trial counsel understood the
    appellants position, which was essentially that he denied the events recounted
    by the complainant, that he had never used violence against the complainant, and
    that the complainant was motivated by revenge to fabricate her allegations.
    This position was amply conveyed in the appellants evidence at trial through
    his examination in chief.

[15]

The appellant does not suggest what evidence he
    might have offered, or what additional details he could have provided in direct
    examination that could have affected the outcome of the case, had he been
    better prepared to testify. The trial judge accepted that the appellants
    evidence was given in a straightforward manner. And, after noting that the
    appellant only gave detailed evidence with respect to some of the incidents and
    for others it was just a general denial, the trial judge observed that this is
    often the case in domestic assault cases. She went on to state however that
    to the extent [the appellant] did give more detailed evidence about an
    incidentin many respects his evidence was incredible (at para. 85).

[16]

It was not the fact that the appellant offered
    few details in direct examination that affected the trial judges assessment of
    his credibility; rather, the details themselves made his evidence incredible
    and not truthful (at para. 85). These included his assertions that, despite
    the various marital issues he described, he was never angry with the complainant,
    save on one occasion; that the complainant yelled at him and abused him but he
    would never yell back; and his attribution of all the problems in the marriage
    to the complainant. The trial judge also found it very telling that the
    appellant could not remember the assaults he alleged the complainant committed against
    him, only referring to an alleged bite. He could not even recall the alleged
    scratching and slap that he had testified about only shortly before (at para.
    85).

[17]

The appellant says that he failed to remember
    the details of the complainants assault which led him to call the police,
    because his trial counsel did not review his police statement with him before
    he testified at trial.  The police statement, which was in connection with
    charges against the complainant and her diversion into a counselling program, is
    not in the record, and was not part of the Crown disclosure in this case. In
    any event, what affected the appellants credibility was not his inability to
    remember small details from the earlier complaint  it was the implausibility that
    he would be unable to recall what the complainant had done to assault him, even
    in the course of his evidence at trial. The trial judge found the appellants
    evidence that the complainant assaulted him to be all made up and an attempt
    to mislead [the] Court and turn the tables on [the complainant] (at para.
    100).

[18]

Similarly, there is no indication of how better
    preparation could have altered the evidence of Ms. S in any way that would have
    helped the defence. Ms. S lived upstairs in the home in which the complainant,
    her son, and the appellant occupied a basement apartment. It was the defence
    position that the assaults could not have happened because there were no
    eyewitnesses, when five people lived upstairs and the appellants sons were
    regular visitors to their home. Indeed, Ms. S testified that she took the
    complainant to the hospital after one alleged assault and out of the house for
    coffee after another, and that on neither occasion did the complainant say she
    had been assaulted. Ms. S testified in chief that she had never witnessed any
    violence between the appellant and the complainant. While this was her evidence
    in chief, on cross-examination Ms. S volunteered that she had seen the
    appellant with a ripped shirt and scratch marks and had seen the complainant
    slap him, at the time of the second incident before she took the complainant
    for coffee. The trial judge rejected Ms. Ss explanation for the inconsistency
    (that she misunderstood the initial question), and she characterized the evidence
    as deliberately misleading. As a result, the trial judge rejected much of Ms.
    S.s evidence andconsidered the rest with caution (at para. 81). Defence
    counsel cannot be faulted for the fact that, as a result of the cross-examination,
    Ms. Ss evidence was rendered largely unhelpful to the appellant. We do not see
    how better preparation of this witness would have made a difference in the
    outcome of the trial.

[19]

The third alleged deficiency in his representation,
    according to the appellant, is that trial counsel did not conduct an effective
    cross-examination of the complainant, and that this affected the reliability of
    the verdict. Specifically, the appellant asserts that trial counsel focused on
    collateral matters and did not confront the complainant with her prior
    inconsistent statements from the preliminary inquiry, or challenge her on
    inconsistencies in her evidence at trial. The main inconsistencies the
    appellant targets were in relation to the second incident (before Ms. S took
    the complainant out for coffee) and the sexual assault incident.

[20]

The appellant points to the fact that the
    complainant, in describing the second incident, testified at the preliminary
    inquiry that after the appellant pulled out her hair, they [which he says
    refers to the whole family] came down, and saw her hair and they cleaned it
    up after Ms. S took her out. At trial however, she testified that, after the
    appellant pulled out her hair, Ms. S came down and saw the hair and that while
    she was outside the hair was cleaned up. In cross-examination she said that Ms.
    S was the person who cleaned up the hair.

[21]

The trial judges reasons describe the
    complainants trial evidence, including the apparent inconsistency about who
    cleaned up the hair (at para. 16). The trial judge explained in detail why she
    found the complainants account of this incident entirely credible (at paras.
    96 to 108).  We are not persuaded that the trial judges credibility assessment
    would have been any different had trial counsel focused on the complainants
    inconsistencies about whether other family members came downstairs with Ms. S,
    and who precisely cleaned up the hair. The core of the complainants account
    was consistent  that the appellant had assaulted her and pulled out her hair,
    that the evidence was cleaned up, and that the appellants family was on his
    side.

[22]

In relation to the sexual assault incident, the
    appellant says there were three main inconsistencies between the complainants
    evidence at the preliminary inquiry and at trial: (1) whether the incident occurred
    at 11:00/11:30 or 8 or 9 pm; (2) whether the complainant or the appellant was
    the person who spoke to the appellants father in India on a phone call prior
    to the incident; and (3) whether the complainant was kicked in the head during
    or after the sex act.

[23]

We disagree that there could have been a
    different outcome at trial, if trial counsel had pursued these alleged inconsistencies
    in his cross-examination of the complainant. First, although there was some
    confusion in her evidence at the preliminary inquiry concerning which incident
    she was speaking of in relation to something happening at 11:00 or 11:30, to
    the extent there was an inconsistency with the complainants evidence at trial
    about the timing of the sexual assault, this was on a minor point. She
    described the assault in each case as occurring after the appellants apology
    (something he testified he
may
have offered), and at night, when she was
    taken by the appellant from her sons bedroom.  Second, whether the complainant
    called the appellants father, or whether the appellant did so, the thrust of
    the complainants evidence, which the trial judge accepted, was that the forced
    sexual intercourse occurred after an apology from the appellant. Third, whether
    the appellant kicked the complainant in the head while having sex with her or
    just after, in each case what was described was a kick that occurred during the
    same event. The trial judge gave cogent reasons for accepting the complainants
    account of the sexual assault incident (at paras. 119 to 124).

[24]

Whether considered together or alone, the
    inconsistencies in the complainants evidence at trial, and between her trial
    and preliminary inquiry testimony, were all on minor aspects of her evidence
    and did not have any real impeachment potential that could undermine the
    reliability of the verdict. This is not a case like
R. v. R.B.
, 2009
    ONCA 524, 68 C.R. (6th) 55, where trial counsel failed to exploit prior
    inconsistent statements that had a significant potential for impeachment.

[25]

Furthermore, we do not agree that the
    appellants counsel limited himself to challenges to the complainants
    credibility on collateral matters. In addition to exploring financial issues
    that did not seem to advance the cross-examination, counsel cross-examined the
    complainant on her own prior statements about how her injuries were caused, her
    motives for making false allegations, including as revenge for the appellant
    calling the police on her, the lack of eyewitnesses, and her failure to
    immediately tell the police she had been assaulted, when she was arrested for
    assaulting the appellant. There were concerns about the complainants evidence
    that were revealed in her evidence, and were addressed in the trial judges
    reasons. In the end, however, the trial judge found that the complainant did
    not exaggerate, that her evidence in some respects was corroborated, and she
    accepted the complainants evidence that supported each of the offences
    charged.

[26]

Finally, the appellant complains that trial
    counsel violated the rule in
Browne
    v. Dunn

when he elicited evidence from defence
    witnesses about matters that had not been put to the complainant in
    cross-examination, and that this adversely affected the outcome of the case.

[27]

We do not give effect to this argument. The
    trial judge noted several instances where evidence from the defence witnesses
    had not been put to the complainant and she observed that the rule in
Browne v. Dunn
had been
    breached. She also stated that Crown counsel only raised the issue in closing
    submissions and that neither counsel suggested that the complainant be
    recalled. Although the trial judge noted that she could take into account the
    fact that the complainant was not questioned about certain matters in assessing
    the appellants credibility, she does not appear to have relied on this factor
    in the course of her credibility analysis and factual findings, and it appears
    to have played no role in her determination of the appellants guilt.

[28]

We are not persuaded that the alleged
    deficiencies in the appellants representation, when considered individually or
    cumulatively, resulted in an unfair trial or an unreliable verdict. After a
    full review of the record, including the transcript of the trial and the trial
    judges careful and detailed reasons, there is no reasonable possibility that
    the appellant would have been acquitted of any of the offences had any one or
    more of the alleged deficiencies not occurred.

[29]

For these reasons, we grant leave to admit fresh evidence concerning the
    appellants ineffective assistance of counsel claim, but dismiss the appeal.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer
    J.A.





[1]

In
Joanisse
, at para. 80, Doherty J.A. framed the test in the
    following terms: the appellant must show that, had he received competent
    legal representation, there is a real probability that the appellant would not
    have been convicted of murder. A reasonable probability lies somewhere between
    a mere possibility and a likelihood. At endnote 9 of
Joanisse
, Doherty
    J.A. stated: In this context, I make no distinction between a
    "reasonable probability" and a "reasonable possibility":
    see
R. v. Garofoli
, supra, at p. 152.



[2]

Law Society of Upper Canada, Toronto: Law Society of Upper
    Canada, amended September 2007,
Rules of Professional Conduct
, Rule 3.1,
    commentary 9.


