



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. D.A., 2020 ONCA 738

DATE: 20201119

DOCKET: C65908

Doherty, Hourigan and Pardu
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.A.

Appellant

Christopher K.
Assié, for the
    appellant

Andrew Cappell, for the respondent

Heard: October 27, 2020 by video conference

On appeal from the convictions entered
    by Justice Shaun S. Nakatsuru of the Superior Court of Justice on February 5,
    2018.

Pardu J.A.:

OVERVIEW

[1]

The appellant was charged with three counts of
    sexual assault and three counts of sexual interference. The complainant was a
    female relative who was nine or ten years of age at the time of the alleged
    offences. The appellant was arrested on September 20, 2016. On February 5, 2018,
    a jury convicted him on all counts.

[2]

He appeals from those convictions on the ground
    of ineffective assistance of counsel. He says that trial counsel told him that he
    could not allow him to testify and that, as a lay person, he would not be able
    to withstand cross-examination by a professional cross-examiner, a Crown
    attorney. He says, further, that trial counsel failed to give him advice to
    enable him to make an informed decision about whether to testify.

[3]

For the reasons that follow, I would allow the
    appeal. The appellant was not given any meaningful advice about whether to
    testify. Had the advantages and disadvantages of testifying been explained to
    him, he likely would have testified. There is a reasonable possibility that,
    had he testified, the verdict would have been different, and so a miscarriage
    of justice has occurred.

MATERIAL FACTS

[4]

Following his arrest, the appellant was brought
    to the courthouse. His wife was distraught and crying in the hallway of the
    courthouse when trial counsel approached her and told her he could help secure
    her husbands release. She paid trial counsel for the bail hearing and the
    appellant was released from custody.

[5]

The appellant then retained trial counsel to
    defend him on the charges. On October 2, 2016, trial counsel emailed him a
    retainer letter. The appellant signed and returned the retainer letter by email
    on October 13, 2016. The second paragraph of the letter describes the
    relationship between counsel and client:

The relationship
    between the accused and counsel is one of confidence between the parties. Each
    of the accused and counsel have specific roles on [sic] that relationship. The
    accused decides whether to plead guilty (if in fact the accused is guilty - I
    cannot assist an innocent person to plead guilty) or to proceed to trial, the
    accused decides whether (where available) the trial should be before a jury or
    with a judge alone and the accused decides whether the accused will take the
    stand and testify. Counsel decides trial strategy including what witnesses
    (other than the accused) and what evidence to call and what theory to pursue in
    the defence. The accused and counsel will collaborate in the above matters but
    the ultimate decisions are as set forth above.

(1)

Proceedings at trial

[6]

The appellant was tried by jury. The complainant
    testified at trial and her police interview was admitted pursuant to s. 715.1
    of the
Criminal Code
. She testified that the alleged offences took
    place in the appellants home on nights when her brothers were also present,
    and when the appellants wife was working. The complainants mother, father,
    and one of her brothers also testified, but none of them had witnessed the
    alleged offences.

[7]

Trial counsel called the appellants wife to
    testify. She testified that she never worked a night shift during the relevant
    period, that she had always been present when the complainant spent time at the
    appellants home, and that she had never seen her husband, the appellant, touch
    the complainant inappropriately. Under cross-examination, she acknowledged that
    she was not always in the same room as her husband and the complainant, as she
    would come and go from the kitchen.

[8]

Following a brief whispered exchange between
    trial counsel and the appellant in front of the jury, trial counsel indicated
    that he would call no more evidence. The appellant did not testify. The jury
    found the appellant guilty on all counts.

(2)

Consultation with appellate counsel

[9]

Following conviction, the appellant approached new
    counsel to prepare an appeal (appellate counsel #1). The appellant advised
    appellate counsel #1, among other things, that his trial counsel had not wanted
    him to testify in his defence.

[10]

After meeting with the appellant, appellate
    counsel #1 telephoned trial counsel in order to assess the merit of the
    appellants claims. He asked trial counsel whether it was true that that the
    appellant had not testified in his own defence, in spite of telling trial
    counsel that he wished to do so. Appellate counsel #1, in his affidavit,
    submitted as fresh evidence in this appeal, describes trial counsels response:

[Trial counsel] advised me that he could not
    let the [appellant] testify because he, the [appellant], as a lay person could
    never withstand the cross examination of a professional like the Assistant
    Crown Attorney prosecuting the case. I was bewildered by the response and
    therefore restated his reason for not allowing the [appellant] to testify as
    stated above to be sure this was what he meant. [Trial counsel] confirmed that
    this was in fact his reason for advising the [appellant] not to testify in his
    defence.

[11]

Appellate counsel #1 then realized that he might
    be involved in an appeal as a witness to these statements by trial counsel, and
    referred the appellant to new counsel for the appeal.

(3)

Conflicting evidence about the relationship between the appellant
    and his trial counsel

[12]

In this appeal, fresh evidence has been filed by
    both parties on the issue of whether there was ineffective assistance of
    counsel, and whether there was a miscarriage of justice. There are affidavits
    from the appellant, his wife, appellate counsel #1, and trial counsel. Each affiant
    was cross-examined on his or her affidavit.

[13]

The appellant, when cross examined on his
    allegations of ineffective assistance of counsel, acknowledged having signed
    the retainer letter, but indicated that, approximately 16 months later when his
    trial occurred, he did not understand that whether to testify was his decision
    to make. The retainer letter was part of the blur of events surrounding his
    arrest and the financial arrangements to retain counsel. The appellant has no
    experience with the courts. He attended high school in Trinidad and worked as a
    courier driver for 25 years.

[14]

Trial counsel could not specifically recall
    discussing with the appellant the fact that the decision as to whether to
    testify was the appellants to make. In cross-examination, he initially stated
    that the fact that it was the appellants decision was discussed in a meeting
    we had very early on. However, he then stated that he did not specifically recall
    this discussion. He assumed it occurred because it was his normal practice, on
    first meeting with a client, to go through the terms of the retainer agreement
    including the roles of counsel and the client.

[15]

Trial counsel has no contemporaneous notes of
    any such discussion. Given this, and the manner in which the appellant received
    and returned the retainer agreement by email, I am unable to conclude that any
    such initial discussion took place.

[16]

When asked about the conversations he had with
    the appellant about the decision to testify, trial counsel stated: [t]here
    were conversations throughout. He says that the appellants position was
    always that he did not want to testify, but that the appellant never said he
    would refuse to testify. He stated that, up until the exchange that occurred
    after the appellants wife testimony, it was always a possibility that the
    appellant would testify.

[17]

Trial counsel has no notes of any discussions
    around testifying that took place in preparation for the trial, and could point
    to no specific occasions, until the exchange after the appellants wife
    testified, when the topic was discussed.

[18]

The appellant says, and trial counsel
    acknowledges, that he repeatedly maintained his innocence to trial counsel. He
    says trial counsel told him repeatedly that the Crown was a professional cross
    examiner and that he could not withstand cross examination. He says trial
    counsel never asked for his instructions about whether to testify, and never
    explained to him the consequences of not testifying in his own defence. He said,
    on cross-examination, that trial counsel told him he could not take the stand. He
    states that he always wanted to testify in his own defence.

[19]

The appellants wife was present during his
    meetings with trial counsel. She says in her affidavit that trial counsel said
    her husband could not testify because he was not a professional.

[20]

At trial, after the appellants wife finished
    giving her evidence, a whispered exchange took place in front of the jury
    between the appellant and trial counsel. Trial counsel himself described this
    exchange as very brief. Trial counsel says that, in that exchange, he told
    the appellant that his wife was a great witness, and the appellant agreed.
    Trial counsel says that he asked the appellant if he wanted to testify and the
    appellant said no.

[21]

Trial counsel, when asked if he gave the
    appellant any advice as to whether or not he should testify, responded not
    that I recall. Trial counsel said he felt that the wifes evidence was
    sufficiently strong that his evidence couldnt add a whole lot, and he didnt
    want to take the stand.

[22]

He elaborated:

Her evidence had
    been to the extent that no opportunity existed for the sexual assaults to have
    occurred. And I didnt see that he could add anything more because he was going
    to be saying more or less the same thing: It didnt happen and it couldnt have
    happened. And shed already said it couldnt have happened, I was there all the
    time.

[23]

Under further cross-examination, trial counsel
    said that he couldnt really offer advice to [the appellant] as to whether or
    not I thought he needed to take the stand until after his wife testified. He
    says he believed he told the appellant that his wife had been a very strong
    witness and that he did not need to take the stand, but its your call.

[24]

Trial counsel had the impression that the
    appellant was nervous or reticent about testifying. There was nothing in the
    appellants background that would have made him vulnerable to cross examination
    about his personal history in front of the jury. There were no prior
    inculpatory statements. There was no evidence that trial counsel attempted to
    prepare the appellant for testifying at trial.

[25]

Trial counsel denies having made the remarks that
    appellate counsel #1 reports hearing from him. He says that they only spoke in
    general terms about the dilemma faced by defence counsel when advising a client
    on testifying. He said it has never been his position to dictate to a client
    whether or not he or she should testify.

[26]

Trial counsel has no notes, correspondence,
    memoranda to file, or docket entries referring to any instructions given to him
    by the appellant, or regarding trial strategy or trial procedure.

ISSUES

[27]

The only issue in this appeal is whether a
    miscarriage of justice occurred due to ineffective assistance of counsel. To
    succeed in a claim of ineffective assistance of counsel, an appellant must: (1)
    establish the material facts on a balance of probabilities; (2) demonstrate
    that counsels acts or omissions amounted to incompetence; and (3) demonstrate
    that counsels ineffective representation caused a miscarriage of justice:
R.
    v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120;
R.
    v. Girn
, 2019 ONCA 202,145 O.R. (3d) 420, at para. 91.

[28]

As the appellant suggests, in this case
    ineffective assistance of counsel can be established by demonstrating that
    trial counsel either made the decision not to call the appellant or failed to
    provide advice to the appellant regarding testifying. If either of these is established,
    the question becomes whether trial counsels ineffective assistance resulted in
    a miscarriage of justice. In some cases the advice given may be so deficient as
    to undermine the fairness of the trial and result in a miscarriage of justice,
    however for the purposes of this appeal, I need not decide that issue.

[29]

I find that trial counsel gave the impression to
    the appellant that the appellant could not be allowed to testify and, in any
    case, failed to provide advice as to whether to testify. This resulted in a
    miscarriage of justice as, provided meaningful advice, the appellant would
    likely have testified, and there is a reasonable possibility that his testimony
    would have led to a different verdict.

ANALYSIS

[30]

The right to effective assistance of counsel in
    criminal proceedings is a principle of fundamental justice:
R. v. G.D.B.
,
2000 SCC 22, [2000] 1 S.C.R. 520, at para.
    24. Competence is assessed by a reasonableness standard, and the analysis
    begins with a strong presumption that counsels conduct fell within the wide
    range of reasonable professional judgment:
G.D.B.
,
at para. 27.

[31]

Reasonable competent counsel may well have
    different views about whether a particular accused should or should not
    testify. As this court noted in
R. v. White
(1997), 114 C.C.C. (3d)
    225, at p. 247, leave to appeal refused, [1997] S.C.C.A. No. 248:

An appellate
    courts review of trial counsels performance should be deferential. [D]eference
    is called for because of the broad spectrum of professional judgment that might
    be considered reasonable. In most cases, even among the most skilled counsel,
    no two lawyers will defend an accused in the same way. Different defence
    counsel will use different trial strategies and tactics, different approaches
    to the examination and cross-examination of witnesses, different styles in
    opening and closing argument, all of them reasonable. The art of advocacy yields
    few, if any, absolute rules. It is a highly individualized art. What proves
    effective for one counsel may be ineffective for another. Most cases,
    therefore, offer defence counsel a wide scope for the exercise of reasonable
    skill and judgment. Appellate judges, many of them advocates in their own
    practices, should not be too quick to conclude that a trial lawyers
    performance was deficient because they would have conducted the defence
    differently.

[32]

Effective representation by counsel includes
    advice as to whether or not to testify:
Archer
,
at para. 139. As noted in
G.D.B.
,
at para. 34, defence counsel are
    ethically bound to discuss the decision whether or not to testify with the
    client and must obtain instructions from the client about his or her choice.

[33]

That advice should include a review of the
    advantages and disadvantages of testifying in language that the accused person
    understands. The decision whether to testify is ultimately the clients, but
    the client cannot make an informed decision unless he or she understands what
    is at stake at this crucial moment in the proceedings. The form and content of
    that review will vary in almost every case. In some cases, a skeletal
    discussion may suffice. In others a more detailed review will be required.
    Sometimes it will be lengthy, at other times it may be quite brief. Counsel
    should document that discussion, by a scribbled note to file if more is not
    possible.

(1)

Did trial counsel provide advice on testifying?

[34]

Here, there is no such evidence. Nothing exists to
    show that any such discussion took place. Further, I accept the evidence of
    trial counsel himself that he did not give the appellant any advice about
    whether or not to testify until the whispered conversation in front of the
    jury.

[35]

By advice, I mean a reasoned explanation of the
    advantages and disadvantages of testifying that would enable the appellant to
    make an informed decision about whether to testify. The brief whispered
    exchange lasting a matter of seconds in front of the jury did not amount to a
    reasoned explanation of the advantages and disadvantages of testifying.

[36]

In contrast, in
Archer
,
as described at paras. 143-144, the
    client signed a written direction during the trial confirming that the decision
    to testify was his own, and that the implications of testifying had been fully
    explained to him, taking into account his previous testimonial performance in
    court and in mock examinations conducted by counsel.

[37]

In this case, I conclude that trial counsels
    communications to his client did not meet the minimum standard required for legal
    advice about whether to testify.

[38]

Further, I find that trial counsels
    communications and his manner of expression, before and after conviction,
    created the impression that the appellant could not be, or had not been,
    allowed to testify. The appellant, his wife, and appellate counsel #1 were each
    left with this impression, even if trial counsel had, in his own mind, not
    intended to foreclose testimony from the appellant. However, my conclusion that
    trial counsel failed to provide meaningful advice to the appellant about the
    decision whether or not to testify is a sufficient basis in itself to establish
    ineffective assistance of counsel.

(2)

Was there a miscarriage of justice?

[39]

An appellant must demonstrate that the
    ineffective representation they received caused a miscarriage of justice. This
    is established if the ineffective assistance undermined the fairness of the
    trial or the reliability of the verdict. As noted in
Archer
,
at para. 120: A verdict is rendered
    unreliable where the appellant demonstrates that had counsel performed in a
    competent fashion, there is a reasonable possibility that the verdict could
    have been different.

[40]

The appellant states, and I accept, that he
    wanted to testify in his own defence. It appears likely that, if trial counsel
    had explained the advantages and disadvantages of testifying, the appellant
    would have testified in his own defence.

[41]

Contrary to trial counsels suggestion, it is
    not the case that the appellants testimony could not add anything more once the
    appellants wife had testified. In her testimony, the appellants wife had
    acknowledged that even though she was home when the complainant visited, she
    would leave her husband and the complainant together in the same room as she
    went about her ordinary activities in the home.

[42]

Even if the jury fully accepted the wifes
    evidence, it was not necessarily inconsistent with the alleged offences taking
    place as the complainant described. The offences could have taken place when the
    appellants wife was not in the room with the appellant and complainant.

[43]

The only person who could potentially say that
    the sexual touching did not occur was the appellant. Had the appellant
    testified, it is possible that his testimony would have led the jury to reach a
    different verdict.

[44]

Given that there is a reasonable possibility
    that the verdict could have been different, had the appellant received effective
    assistance from counsel, a miscarriage of justice has occurred.

[45]

The convictions are therefore set aside, and a
    new trial is ordered.

Released: November 19, 2020

D.D.


G.
    Pardu J.A.

I
    agree Doherty J.A.

I agree C.W. Hourigan J.A.


