



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Stark, 2017 ONCA 148

DATE: 20170221

DOCKET: C57488

Doherty, Blair and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Stark

Appellant

Erika Chozik, for the appellant

Dena Bonnet, for the respondent

Heard: January 18, 2017

On appeal from the conviction entered by Justice Kevin
    Sherwood of the Ontario Court of Justice, dated June 11, 2013 and from the sentence
    imposed on August 20, 2013.

Lauwers J.A.:

[1]

The appellant and the complainant were casual acquaintances in the town
    of Port Dover. The complainant testified that she awoke one night to find the
    appellant in her bedroom, drunk. He sexually assaulted her and left after an
    hour. The appellant testified that the sexual encounter was consensual, which
    the complainant denied.

[2]

The appellant was charged with breaking and entering the complainants
    residence with the intent to commit an indictable offence, contrary to s.
    348(1)(a) of the
Criminal Code
, and with assaulting her sexually,
    contrary to s. 271(1) of the
Code
. He was convicted of both charges
    and was sentenced to 15 months imprisonment.

[3]

The primary ground of appeal is that the appellant was ineffectively
    assisted by trial counsel, Mark Dresser. I find merit in the appellants
    argument that he was not given an adequate opportunity to consider electing his
    mode of trial, as provided by s. 536 of the
Criminal Code
, that is,
    whether to be tried in the Superior Court, which would have led to a
    preliminary inquiry, or to be tried in the Ontario Court of Justice, as he was.
    On this basis alone the conviction cannot stand. It is therefore unnecessary to
    consider the appellants other complaints about the ineffective assistance of
    counsel, his substantive grounds of appeal, or his sentence appeal.

The Factual Context

[4]

The appellants interactions with trial counsel are described in the
    affidavits and cross-examinations found in the Fresh Evidence, which relates to
    the ineffective assistance of counsel claim. The appellant first met trial
    counsel at the courthouse in November 2011. The meeting was brief. Trial
    counsel skimmed the disclosure the appellant handed to him, and agreed to take
    the appellants case. They next met in December 2011, again at the courthouse.

[5]

Around January or February 2012, trial counsel asked the appellant how
    he wanted to plead. The appellant was adamant that he was innocent. Trial
    counsel told him that the matter would probably go to trial. From January 2012
    to November 2012, the appellant testified that he had only email contact with
    his lawyer, in which he unsuccessfully asked for a copy of the Crowns disclosure
    material.

[6]

The appellant next met trial counsel the day before the trial on
    February 6, 2013. He asserts he was shocked to learn at the meeting that the
    trial would be the next day. This is disputed by trial counsel.

[7]

At trial, Crown counsel advised that he would be proceeding by
    indictment because, although sexual assault is a hybrid offence, the break and
    enter charge was straight indictable. The Crowns manner of proceeding surprised
    trial counsel. The clerk then asked, in relation to the appellants election of
    the mode of trial required by s. 536 of the
Criminal Code
: Mr. Stark,
    do you waive reading of the election? Trial counsel, not the appellant,
    responded: Yes. The clerk then read the charges and asked: And on this
    charge, how to you elect to be tried? Again trial counsel, not the appellant,
    responded: Mr. Stark elects to be tried by this Honourable Court today.

[8]

How this election came about is the basis of the appellants claim that
    he was ineffectively assisted by trial counsel. I return to the details below.

The Issue: Has the Appellant
    established that he was ineffectively assisted by counsel regarding the
    election of the mode of trial required by s. 536 of the
Criminal Code
?

[9]

I consider first the governing principles and then their application to
    the facts of this case.

(1)

The Governing Principles

[10]

The right to the effective assistance of counsel is constitutionally
    protected. It is part of the right to make full answer in defence and the right
    to a fair trial:
R. v. G.D.B.,
[2000] 1 S.C.R. 520, para. 24;
R.
    v. Joanisse,
[1995] O.J. No. 2883, at para. 63.

[11]

The analytical framework was set out by Doherty J.A. in
Joanisse
at para. 69, and in
R. v. Baylis,
2015 ONCA 477, at para 61
.
The
    court starts with the
presumption th at
    trial counsel was competent.

[12]

The framework has three elements.

First,
    t
he appellant must establish the facts on which the claim of
    incompetence is based.

[13]

Second, the appellant must establish that the representation provided by
    trial counsel was incompetent, in that counsels performance fell below a
    standard of reasonable professional assistance.

[14]

Third, the appellant must establish prejudice by showing that the incompetent
    representation resulted in a miscarriage of justice. The miscarriage of justice
    can be established in one of two ways. The first is to show that incompetent
    representation undermines the reliability of the verdict. The second is to show
    that the incompetent representation undermined the appearance of the fairness
    of the trial proceeding.

[15]

Most allegations of ineffective assistance of counsel take the first
    route, and involve claims that discrete instances of counsels incompetence worked
    to render the verdict unreliable. To succeed on this basis the appellant must
    demonstrate a reasonable possibility that, but for the incompetence, the
    verdict could have been different.  That is the prejudice to be established. Examples
    from the cases include counsels failure to object to inadmissible evidence,
    the failure to call material witnesses, the lack of preparation for trial, failure
    to carefully review Crown disclosure, the failure to prepare the accused to
    testify, and the failure to cross-examine effectively, or at all.

[16]

However, different considerations apply where the appellant takes the
    second route and challenges trial fairness, particularly on the basis that
    counsel has made certain decisions that should have been made by the accused
    person because they relate to the accused persons fundamental right to control
    his or her own defence:
R. v. Swain,
[1991] 1 S.C.R. 933, at para. 35.
    That is the appellants claim in this appeal.

[17]

The elements of the defence that an accused person is entitled to control
    were discussed by G. Arthur Martin, as he then was, in his seminal article
    entitled
The Role and Responsibility of the Defence Advocate
(1969-70)
    12 Crim. L.Q. 376. He mentioned three defence decisions that only the client
    can make: how to plead; whether to waive a trial by jury where that is
    permissible; and whether to testify on his own behalf. There are doubtless
    others. Mr. Martin made the following observation, at p. 387:

Obviously, neither counsel nor anyone else can deprive an
    accused of his fundamental rights. If the accused insists on giving evidence or
    insists on a jury trial, contrary to counsels advice, counsel cannot, as a
    matter of law, prevent him from exercising those rights.

[18]

In my view, the right to elect the mode of trial under s 536 of the
    Criminal Code is one of those fundamental rights that counsel cannot take from
    a client and on which the client is entitled to be adequately advised by
    counsel.

[19]

Parliament has chosen to give accused who are charged with the more
    serious crimes a choice as to the mode of trial. That right is partly
    constitutionalized in s. 11(f) of the Charter, which guarantees a right to
    trial by jury for offences punishable by a sentence or five years or more. The
    exercise of the right to choose the mode of trial is integral to the courts
    jurisdiction over an accused and is essential to the fairness of the
    proceeding.

[20]

If an accused receives no advice from counsel as to his options, or the
    advantages and disadvantages of the respective options, then the accused has
    effectively been denied his right to choose his mode of trial under s.536 of
    the
Criminal Code
. The miscarriage of justice lies in proceeding
    against the accused without allowing him to make an informed election, and the
    accused need not establish further prejudice. What the accused might or might
    not have done had he been aware of his options is not relevant.

(2)

The Principles Applied

[21]

How the election of the mode of trial came about in this case is a
    matter of some dispute.

[22]

Trial counsels evidence and the transcript of the arraignment clearly
    show he had prepared for the trial of a summary conviction offence.  He
    admitted the idea of a preliminary inquiry did not cross his mind before it
    arose at the beginning of trial, because the charge screening form erroneously indicated
    the Crown would be proceeding summarily. Given that indication, trial counsel
    was surprised that the Crown was proceeding with the straight indictable break
    and enter charge. He had formed the view that the Crown would only be
    proceeding on the sexual assault charge, although he did not recall addressing
    the issue with the Crown in two pre-trial conferences.

[23]

Since the Crown was proceeding by indictment, trial counsel was immediately
    compelled to seek instructions from the appellant on his election of the mode
    of trial. Trial counsel said there was a pause in the trial proceedings during
    which he had a short conversation about whether the appellant wanted an
    adjournment and preliminary inquiry, and the appellant responded he wanted to
    go to trial that day.

[24]

The appellant disputes this evidence. He testified that he was not
    familiar with the criminal law process and did not understand what was going on
    in court, and that trial counsel said nothing to him in court about what was
    happening. He did not know that he could have had a preliminary inquiry. The
    appellant stated that if trial counsel had sought instructions, he would have
    chosen a preliminary inquiry. He disagreed with trial counsels claim that he
    wanted to get things over with as quickly as possible.

[25]

The Crown challenges the appellants credibility: the appellants
    assertion that he received no advice on the mode of trial is unbelievable.
    However, trial counsel made several admissions that, taken together, largely
    substantiate the appellants evidence on this issue.

[26]

In cross-examination on his affidavit, trial counsel could not recall
    the exact words he used in advising the appellant, but he asserted he would
    have said How do you want to proceed? Do you want an adjournment? Trial
    counsel testified initially that he believed he explained that there could be a
    preliminary inquiry and a trial, and therefore an adjournment, but he also said
    that he did not explain that the appellant could have a trial in Superior Court
    or a trial with judge and jury, and had never before discussed a preliminary
    inquiry with him.

[27]

Trial counsel agreed that he had no real opportunity to explain the
    advantages of the options to the appellant. Their short conversation was in
    open court. He conceded the appellant did not have the most time to consider
    the decision he was being asked to make. He agreed that he could have asked to
    stand the matter down, but did not.

[28]

In cross-examination, trial counsel had trouble identifying the spot in
    the transcript where the pause occurred. He was then taken to the audio
    recording of the proceedings, and identified a break that lasted from 30 to 90 seconds.
    He said that it was during this short time he asked the appellant what do you
    want to do? Do you want an adjournment? Trial counsel then admitted that this
    was the full extent of his advice, contrary to his earlier evidence. He
    conceded that in the short time available, he could not give the appellant
    enough information to permit him to make an informed decision about the
    election.

[29]

While the Crown concedes that the trial counsels conversation with the
    appellant to the mode of trial could have been more detailed, she argues that
    the appellants assertion that he received no advice on the mode of trial is
    unbelievable, and that it is unreasonable to accept the appellants evidence
    that no words were exchanged at all. She adds: Given the appellants stated
    knowledge about preliminary inquiries and their earlier discussion, while a
    longer conversation may have been preferred, it was adequate in the
    circumstances.  Crown counsel relies on the words of this court in
R. v.
    Chica
, 2016 ONCA 252 at para. 19: A failure to advise an accused about
    the available mode of trial
may
constitute
    incompetence leading to a miscarriage of justice in the appropriate case. She
    argues that, in this case, even with full information, the appellant would have
    chosen to have his trial that day because he wanted to get it over with.
    Accordingly, she asserts: the appellant suffered no prejudice.

[30]

Given trial counsels admissions, I would reject these Crown
    submissions. The appellant might have been dimly aware of the existence of
    preliminary inquiries from his wifes internet searches, but there is no
    evidence that the level of his conversancy was sufficient to have made up for
    trial counsels manifest failures. Trial counsel admitted giving the appellant
    no cogent advice about his options concerning the mode of trial, nor did he
    take steps to get the appellant the time he needed to consider his election.

[31]

In my view, these facts are sufficient to fatally undermine the fairness
    of the trial. The appellant need not establish further prejudice by attempting
    to prove his assertion that he would have elected a Superior Court trial
    preceded by a preliminary inquiry. It is not this courts business to override
    an accused persons fundamental right to make the election by predicting
    retrospectively that his true choice would have been different.

[32]

While there might be cases in which trial counsels failure to advise
    the accused person about the available modes of trial will not constitute a
    miscarriage of justice, this is not one of them.

Disposition

[33]

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

P. Lauwers J.A.

I agree Doherty J.A.

R.A. Blair J.A.

Released: February 21, 2017


