COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ali, 2019 ONCA 1006

DATE: 20191220

DOCKET: C65466

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Ayanle Hassan Ali

Respondent

Jason J. Wakely and Bradley Reitz, for the appellant

Nader R. Hasan, Emily Quail, and Maureen Elaine Addie,
    for the respondent

Anil K. Kapoor and Dana Achtemichuk, for the intervener,
    the Criminal Lawyers Association

Heard: June 24, 2019

On appeal from the acquittal entered by Justice Ian A.
    MacDonnell of the Superior Court of Justice, on May 14, 2018, with reasons
    reported at 2018 ONSC 2838.

Watt J.A.:

[1]

If a person can be a group, can that same person also commit an offence
    for the benefit, or at the direction of, or in association with that same group
    of which he is the only member?

[2]

Ayanle Hassan Ali (the respondent) attacked three members of the
    Canadian Forces at a local recruiting centre. He was, the Crown alleged, his
    own terrorist group. The Crown also alleged that the respondent committed
    several indictable offences for the benefit of, at the direction of, or in
    association with that terrorist group of which he was the only member.

[3]

Two highly qualified forensic psychiatrists agreed that the respondent
    suffered from a mental disorder, schizophrenia, which rendered him incapable of
    knowing that his conduct was morally wrong.

[4]

At the conclusion of the respondents trial, the presiding judge found
    him not guilty of committing various indictable offences for the benefit of, at
    the direction of, or in association with his own terrorist group. And not
    criminally responsible on account of mental disorder for the underlying
    indictable offences alleged to have been committed.

[5]

The Crown appeals and asks that a new trial be ordered on the principal
    offences charged  breaches of s. 83.2 of the
Criminal Code
 with that
    trial limited in its scope.

[6]

These reasons explain why I have concluded this appeal fails and should
    be dismissed.

The Background Facts

[7]

The trial proceeded on the basis of an Agreed Statement of Facts
    together with the testimony of the two forensic psychiatrists who shared the
    same view of the nature and effect of the respondents major mental illness.

The Initial Attack

[8]

On March 14, 2016, the respondent walked into a Canadian Forces
    Recruiting Centre. When an officer tried to screen him for security purposes,
    the respondent punched the officer repeatedly in the head. The respondent then
    pulled a large kitchen knife out of a folder he was carrying and lunged at the
    officer with slashing and stabbing motions. The officer, who had been seated at
    a desk, suffered a three-inch gash on his arm.

The Intervention

[9]

Another officer intervened. He jumped over a desk, armed himself with a
    chair as a shield against a knife attack, and moved the respondent away from his
    wounded colleague. The respondent engaged this second officer. But the attack
    failed because of the chair the officer held in front of him.

The Advance and Second Attack

[10]

The respondent ran past the first two officers further into the
    recruiting centre. He chased a female officer, who had come out of her office,
    further into the recruiting centre. He swung his knife at her more than once,
    narrowly missing the back of her neck.

The Third Attack

[11]

Confusion and chaos followed. The respondent encountered another officer
    who had slipped on some spilled coffee and fallen to the floor. He slashed and
    stabbed this officer who suffered a small cut to his left lateral/mid-chest
    either from his fall or a stab by the respondent.

[12]

The respondent lost control of the knife when it struck the floor as he
    attempted another stabbing motion.

The Apprehension

[13]

The respondent ran towards the rear of the recruiting centre. There, a
    door led to another internal room but not to an exit from the building. The
    door was partially closed. Several officers blocked the entry. Although
    recollections differed about the precise sequence of events, in the end, the
    respondent was tackled, grounded and subdued. Officers seized the knife after
    it came loose from the respondents hand.

The Observations of the Respondent

[14]

By all accounts, the events in the recruiting centre ended about a
    minute after they had begun. The respondent ran around frantically. He was
    listening to his iPod: the Quran, Chapter Two appeared on the screen. The
    respondent was muttering a prayer as officers tried to subdue him. He was
    incoherent and unresponsive to commands, laughing, smiling, giggling as if he
    were on something.

[15]

To some of the officers, the respondent appeared to be having a seizure.
    His eyes rolled back in his head. He foamed at the mouth. He laughed
    frequently. His affect was flat. He was not there, lost in the clouds. He
    told a paramedic that Allah had sent him to kill people.

The Post-Arrest Searches

[16]

Apart from the iPod, officers at the Recruiting Centre found no devices
    in the clothing or attached to the respondents body when they strip-searched
    him at the centre. Police conducted a warranted search at the respondents
    home. There they found a lab notebook with entries from earlier in the month of
    the attack. The entries recounted the respondents everyday struggles and his
    complaints about government surveillance. There were entries about Jihad and
    martyrdom and how to break free from his distractions and thoughts to become a
    productive member of society. Other writings indicated that he had a licence,
    the green light, to kill. He lamented having no money for AK 47s or rockets.

The Terrorist Group

[17]

Investigators searched all the electronic devices they found on the
    respondent at the Recruiting Centre and at his home. They found no evidence of
    any connection with any other person or group.

[18]

It was not alleged at trial that the respondent was a member of any
    group other than that of which he was the only member.

The Expert Evidence of Mental Disorder

[19]

Dr. Philip Klassen, a forensic psychiatrist and the Vice-President,
    Medical Affairs at Ontario Shores Centre for Mental Health Sciences, examined
    the respondent on behalf of the Crown to determine whether, from a psychiatric
    perspective, the respondent was criminally responsible for his conduct.

[20]

Dr. Klassen concluded that the respondent suffered from schizophrenia, a
    major mental illness. The issue of criminal responsibility was complicated by
    the respondents limited insight and his religious ideation. Dr. Klassen was
    satisfied that despite his major mental illness, the respondent appreciated the
    nature and quality of his conduct: he was aware that he was attacking soldiers
    with a knife and intended to kill them. The doctor was also satisfied that the
    respondent knew his conduct was legally wrong. However, the respondent did not
    know his conduct was morally wrong.

[21]

Dr. Gary Chaimowitz is a forensic psychiatrist and the Head of Service
    for the Forensic Psychiatry Program, at St. Josephs Healthcare in Hamilton. He
    examined the respondent at the request of the defence.

[22]

Dr. Chaimowitz agreed that the respondent suffered from schizophrenia.
    He also agreed that the respondent appreciated the nature and quality of his
    conduct: he intended to attack the soldiers, motivated by a desire to be
    martyred when they (the soldiers) killed him. The respondent knew that his
    conduct was legally wrong.

[23]

It was Dr. Chaimowitzs opinion that the respondent did not know his
    conduct was morally wrong. The respondent thought that his conduct was morally
    justified, a conclusion driven by his sense of persecution, which he
    experienced as a function of his psychosis. The doctor acknowledged the
    possibility that the conduct was driven by the respondents Jihadist ideology
    more than by his delusions. But, Dr. Chaimowitz explained, when the
    respondents entire history, including the recent changes in his behaviour, the
    escalation of his symptoms, and the conviction with which the delusions from
    his mental illness drove his behaviour, he was satisfied that it was the mental
    disorder that drove the respondents behaviour and deprived him of the
    knowledge of the moral wrongfulness of his conduct.

The Decision of the Trial Judge

[24]

The trial judge found the respondent not guilty of committing the
    various indictable offences for the benefit of, at the direction of or in
    association with a criminal organization. He then focused on the various
    predicate or underlying offences as included within the principal offences
    charged under s. 83.2 and found the respondent NCRMD in relation to those
    offences.

The Grounds of Appeal

[25]

The Attorney General advances a single ground of appeal: that the trial
    judge erred in holding that a person cannot be convicted of an offence under s.
    83.2 of the
Criminal Code
, R.S.C. 1985, c. C-46

when that person
    is the only member of the terrorist group for which the offence was committed.

[26]

If the appellant is correct, a further issue arises concerning the
    disposition which should be made in this court concerning future proceedings.

Ground #1: The Interpretation of Section 83.2

[27]

As I begin, I find it helpful to briefly sketch out the common ground
    between the parties and identify the areas of controversy. After that, I will
    set out the relevant passages of the trial judges reasons before reviewing the
    parties positions and the principles that control our decision.

The Common Ground

[28]

The appellant and respondent agree on three things.

[29]

First, that a terrorist group within s. 83.01(1) can consist of a
    single individual. A terrorist group is an entity and an entity is defined
    in s. 83.01(1) as including a person.

[30]

Second, that the respondent is his own terrorist group. He is not a
    member of any listed entity or terrorist group.

[31]

Third, that the respondent was suffering from a mental disorder
    schizophrenia  when he committed the offences charged. This rendered him
    incapable of knowing his conduct was morally wrong.

The Controversy

[32]

The parties disagree about whether, as a matter of law, the person
    committing the indictable offence (the principal) can be the only member of the
    terrorist group for whose benefit, at whose direction, or in association with
    whom the offence is committed. In other words, can the person committing the
    offence and the terrorist group be one and the same?

The Reasons of the Trial Judge

[33]

The trial judge concluded that s. 83.2 of the
Criminal Code
does not capture
an individual who
    committed an indictable offence alone in pursuit of his own personal terrorist
    agenda:

The Crowns approach to the interpretation of s. 83.2 focuses
    almost entirely on the wording of the provision. The wording is obviously
    important but statutory interpretation cannot be founded on the wording alone.
    Rather, the words of an Act are to be read in their entire context and in
    their grammatical and ordinary sense harmoniously with the scheme of the Act,
    the object of the Act, and the intention of Parliament.

When the interpretation of s. 83.2 is approached in that
    manner, and when the objective of Part 11.1 of the
Code
, the method by
    which Parliament has sought to achieve that objective, the wording of s. 83.2,
    the role that s. 83.2 plays in the anti-terrorism scheme, and the relationship
    that s. 83.2 has with other provisions of Part 11.1 are considered together and
    as a whole, the inexorable conclusion is that the intention of Parliament in
    enacting. 83.2 was to proscribe the kinds of
associative
conduct that
    support, facilitate and contribute to terrorist activity. The kind of lone-wolf
    criminal conduct engaged in by the defendant was not intended to be captured by
    s. 83.2. Parliament understood that such conduct was subject to prosecution
    under the existing provisions of the
Criminal Code
and was content to
    simply bolster the sentencing options available for that conduct by enacting s.
    83.27. There was no need to do more.

Accordingly, the Crown has failed to prove that the defendants
    attack on the military personnel at the Recruiting Centre was for the benefit
    of, at the direction of or in association with a terrorist group and he is
    found not guilty on each of the nine counts under s. 83.2. However, he is not
    entitled to be found not guilty of the included offences of attempted murder,
    assault causing bodily harm, assault with a weapon and carrying a weapon. The
    agreed facts establish that he committed the
actus reus
of each of
    those offences and that he did so with the requisite intent. Whether he should
    be found guilty of those offences depends on whether at the time of the attack
    he was suffering from a mental disorder so as to be exempt from criminal
    responsibility. It is to that issue that I now turn [footnote omitted].

[34]

The trial judge explained that it was not enough to establish liability
    that, as a matter of law, a single person could be a terrorist group and that,
    as a matter of fact, the respondent was such a group. Other principles of
    statutory interpretation, such as the associated words doctrine, suggest the
    terrorist group must be an entity separate and apart from the principal who
    commits the indictable offence. After all, the anti-terrorism legislation is
    focused on associative activity. Parliament could have captured the lone wolf
    terrorist in Part II.1 but did not do so. What is more, the appellants
    interpretation renders other statutorily-created offences redundant and leads
    to absurd results.

The Arguments on Appeal

[35]

The appellant contends that, properly interpreted, s. 83.2 applies to
    the lone wolf who commits an indictable offence to advance the goals of his own
    self-constituted terrorist group. To that end, the appellant identifies four
    errors made by the trial judge that resulted in his flawed conclusion.

[36]

First, the appellant says the trial judge misconstrued the legislative
    purpose of Part II.1. The overriding objective of the Part is not, as the trial
    judge held, related to associative activity. Rather, the objective of Part II.1
    is to prevent the commission of terrorist activity,
all
terrorist
    activity, whether that of a group or of a lone actor. The purpose of the
    legislation in Part II.1 is the prevention and prosecution of terrorism
    offences. This interpretation does not render other provisions of Part II.1,
    such as ss. 83.202 and 83.27, redundant.

[37]

The trial judges interpretation does not account for lone wolf
    terrorists who take steps, not amounting to an attempt, to carry out a
    terrorist activity. Nor does it consider the normative importance (namely
    deterrence) of labelling terrorist activity correctly. By excluding the lone
    wolf from the ambit of Part II.1, the trial judge misconstrued and undermined
    Parliaments preventative purpose in enacting the anti-terrorist legislation.

[38]

Second, the appellant contends it is awkward but not implausible to
    describe a single individual as a group committing an offence for the
    benefit of, at the direction of or in association with himself, that is to
    say, his one-person terrorist group. The connective among these three modes of
    committing this offence is the disjunctive or. The lone wolf interpretation
    of s. 83.2 is supportable if just one of these three modes applies. And for
    the benefit of does so.

[39]

Third, the appellant argues no ambiguity inhabits the phrase in association
    with found in s. 83.2. This section requires a connection between the
offence
and the group, not the accused and the group. Interpreted in this way, the
    phrase is applicable to the lone wolf.

[40]

Fourth, the appellant says the trial judge incorrectly used the
    associated words rule in his interpretation of s. 83.2. This error is twofold:

i.

the
    legislation was not ambiguous, so the rule does not apply; and

ii.

if
    the rule is applicable, the judge misidentified the common objective of the
    disjunctive modes.

[41]

The respondent rejects the appellants position and advances three reasons
    for why the trial judges conclusion that s. 83.2 does not apply to individuals
    acting alone was correct.

[42]

First, the respondent points out that the language for the benefit of,
    at the direction of or in association with a terrorist group is not unique to
    s. 83.2. This phrase appears elsewhere in Part II.1, as for example, in ss.
    83.18(3), 83.201 and 83.21(1). These terms have, as their common sense meaning,
    one that excludes individuals, such as the respondent, who act alone.

[43]

Second, the respondent says a single person cannot be at one and the
    same time the principal and the one-person group for whose benefit the offence
    is being committed. The respondent accepts that a single person can constitute
    or be a terrorist group. But if the relevant group is but a single
    individual, then the principal, the person who commits the indictable offence,
    must be different from the person who is the terrorist group. The respondent
    cites the following principles of statutory interpretation to support its
    position:

·

Presumption against tautology:
Parliament is presumed to
    have been acting purposefully and logically when it enacted s. 83.2. Common
    sense indicates that when a person does something intentionally, they do so for
    their own benefit. To require nothing more would mean that every indictable
    offence committed for an ideological purpose potentially falls within the sweep
    of s. 83.2 and collapses the essential elements

of indictable offences
    and those of terrorist offences.

·

Same words same meaning principle:
the phrase for the
    benefit of, at the direction of or in association with appears in s. 467.12(1)
    regarding criminal organizations. Under this provision, there must be a nexus
    between the indictable offence and the criminal organization such that where a
    principal intends the indictable offence to advance their own purpose, rather
    than that of the organization, the section has no application. The same result
    should follow here despite the requirement that a criminal organization consists
    of three or more persons.

·

Associated words rule:
because at the direction of and
    in association with in s. 83.2 contemplates the principal and terrorist group
    as separate entities, the phrase for the benefit of should be read in a
    harmonious way to the same effect.

[44]

Third, the respondent says legislative intent does not rebut the
    governing principles of statutory interpretation. Parliaments purpose in
    enacting s. 83.2 was to punish those who aid, abet, or participate in terrorist
    groups. Parliament did so by expanding the law to prohibit certain associative
    activities (
e.g.
, the inclusion of the existence of a terrorist group as
    an essential element of several offences included in Part II.1) and in forbidding
    certain preparatory conduct that enables and assists terrorist groups. The
    respondents position will not deprive law enforcement of the tools necessary
    to prosecute lone wolf terrorists.

The Governing Principles

[45]

This appeal involves a question of statutory interpretation. Specifically,
    whether s. 83.2 applies to a person who is at once the principal who commits
    the indictable offence and the only member of the terrorist group whose
    interests are advanced by its commission.

[46]

The modern principle of statutory interpretation requires that we read
    the words of the section in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act
    and the intention of Parliament:
Application under s. 83.28 of the

Criminal
    Code (Re)
, 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 34, citing E.A.
    Driedger,
Construction of Statutes
,
2nd ed. (Oxford: Butterworth-Heinemann, 1983), at p. 87. This approach
    acknowledges the many-sided nature of statutory interpretation and the need to
    read textual considerations with the legislative intent and established legal
    norms:
Application under s. 83.28 of the

Criminal Code (Re)
, at para. 34
. See also,
Re Rizzo
    & Rizzo Shoes Ltd
., [1998] 1 S.C.R. 27, at para. 21
; Bell
    ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at
    para. 26.

[47]

In our interpretation of a legislative provision, such as s. 83.2, we
    must form an impression of the meaning of its text. But we do not stop there.
    We must then infer what rules the legislative authority intended to enact. This
    we do by taking into account the purpose of the provision and all relevant
    context. This is so regardless of whether we consider the provision to be
    ambiguous: Ruth Sullivan,
Sullivan on the Construction of Statutes
(6th ed, 2014), at para. 2.2.

[48]

To determine whether a statutory provision applies to a specific factual
    matrix, we must consider:

i.

the
    meaning of the text of the provision;

ii.

the
    intention of the legislating authority; and

iii.

the consistency of the
    proposed interpretation with established legal norms.

See, Sullivan, at para.
    2.3-2.5; 2.8.

The Textual Meaning

[49]

Section 83.2 of the
Criminal Code
creates and punishes an indictable offence:

Every one who commits an indictable
    offence under this or any other Act of Parliament for the benefit of, at the
    direction of or in association with a terrorist group is guilty of an
    indictable offence and liable to imprisonment for life.

[50]

To establish an alleged
    offenders guilt of this offence, the Crown must prove the three essential
    elements beyond a reasonable doubt:

·

predicate offence;

·

terrorist group; and,

·

nexus/relationship.

The Predicate Offence

[51]

An offence is deemed to be an indictable offence if the enactment
    creating that offence provides that the offender may be prosecuted for the
    offence by indictment:
Interpretation Act
, R.S.C. 1985, c. I-21, s.
    34(1)(a). Each underlying or predicate offence is either exclusively indictable
    or may be prosecuted by indictment.

The Terrorist Group

[52]

The term terrorist group is exhaustively defined in s. 83.01(1) of the
Criminal Code
as the entity the interests of which are advanced, to some
    degree at least, by the commission of the predicate offence:

(a) an entity that has as one of its purposes or activities
    facilitating or carrying out any terrorist activity, or

(b) a listed entity,

and includes an association of such entities.

[53]

Two components of the term terrorist group require special mention.

[54]

Section 83.01(1) defines a terrorist activity as having a conduct and
    a mental or fault component:

(b) an act or omission, in or outside Canada,

(i) that is committed

(A) in whole or in part for a political,
    religious or ideological purpose, objective or cause, and

(B) in whole or in part with the
    intention of intimidating the public, or a segment of the public, with regard
    to its security, including its economic security, or compelling a person, a government
    or a domestic or an international organization to do or to refrain from doing
    any act, whether the public or the person, government or organization is inside
    or outside Canada, and

(ii) that intentionally

(A) causes death or serious
    bodily harm to a person by the use of violence,

(B) endangers a persons life,

(C) causes a serious risk to the
    health or safety of the public or any segment of the public,

(D) causes substantial property
    damage, whether to public or private property, if causing such damage is likely
    to result in the conduct or harm referred to in any of clauses (A) to (C), or

(E) causes serious interference
    with or serious disruption of an essential service, facility or system, whether
    public or private, other than as a result of advocacy, protest, dissent or
    stoppage of work that is not intended to result in the conduct or harm referred
    to in any of clauses (A) to (C),

and includes a conspiracy, attempt or threat to commit any
    such act or omission, o
r being an accessory after the fact or
    counselling in relation to any such act or omission
.

[55]

The conduct component includes not only an act or omission, but also a
    conspiracy, attempt or threat to commit any act or omission, or being an
    accessory after the fact to an act or omission that causes a consequence
    described in any of subparagraphs (b)(ii)(A) to (E):
R. v. Khawaja
,
    2010 ONCA 862, 273 C.C.C. (3d) 415 at para. 81, affd 2012 SCC 69, [2012] 3
    S.C.R. 555.

[56]

The mental or fault component of terrorist activity consists of three
    parts:

i.

intending to bring about any consequence described in subparagraphs
    (1)(b)(ii)(A) to (B);

ii.

further
    intending to bring about either consequence described in subsection
    (1)(b)(i)(B); and,

iii.

for a
    political, religious or ideological purpose, objective, or cause in subsection
    (1)(b)(i)(A).

In other words, the fault
    element requires the Crown to prove the accuseds intention to bring about any
    consequence prohibited in the definition; an ulterior intention with respect to
    a further consequence; and a specified purpose or motive:
Khawaja
, at
    paras. 82-86.

[57]

Section 83.01(1) defines an entity as

entity means a person,
    group, trust, partnership or fund or an unincorporated association or
    organization.

[58]

The inclusion of a person in the exhaustive definition of entity
    means a single (natural) person can constitute a terrorist group:
R. v.
Khawaja
,

2012 SCC 69, [2012] 3 S.C.R.
    555, at paras. 26 (S.C.C.),
Khawaja
(Ont. C.A.), at para. 78;
United
    States of America v. Nadarajah
, 2010 ONCA 859, 266 C.C.C (3d) 447 at para.
    20, affd 2012 SCC 70, [2012] 3 S.C.R. 609.

The Nexus/Relationship

[59]

Section 83.2 targets indictable offences connected to the activities of
    a terrorist group and to advancing its interests. This element may be
    established on any of the three alternative bases in the section: for the
    benefit of, at the direction of, or in association with.

[60]

These words bear their normal, natural, everyday meaning, and share a
    common objective: to suppress terrorist activity:
R. v. Ansari
, 2015
    ONCA 575, 330 C.C.C. (3d) 105, at para. 168. See also,
R. v. Venneri
,
    2012 SCC 33, [2012] 2 S.C.R. 211, at para. 53. The single connective or is
    disjunctive. It signals that the relationships are alternatives, that is to
    say, that proof of any one will suffice to establish this element of the
    offence. Proof of all is not required: see
e.g.
Venneri
, at
    para. 53.

[61]

The Supreme Court in
Venneri
discussed the meaning of in
    association with in the context of the s. 467.12 criminal organization
    provision. That provisions use of in association with is analogous to s.
    83.2, so I find the reasoning persuasive to the interpretation of s. 83.2 in
    this case.

[62]

The phrase in association with captures indictable offences that
    advance, in some measure at least, the interests of a terrorist group, even if
    they are neither primarily for its benefit nor directed by the group:
Venneri
,
    at para. 54. The phrase requires a connection between the predicate indictable
    offence and the terrorist group, not simply an association between the
    principal who commits the indictable offence and the terrorist group:
Venneri
,
    at para. 55.

[63]

An offender may commit an indictable offence in association with a
    terrorist group of which the offender is not a member. However, membership in
    the group can be a relevant factor in determining whether, in all the
    circumstances, the required relationship or nexus between the offence and the
    group has been adequately established:
Venneri
, at para. 56.

The Intention of Parliament

[64]

The purpose of the
Anti-terrorism Act
is the prosecution and
    prevention of terrorism offences:
Application under s. 83.28
, at para.
    40.

[65]

The Acts preamble is evidence of this purpose. It speaks to the
    challenge of eradicating terrorism; the need to strengthen Canadas capacity to
    suppress, investigate, and incapacitate terrorist activity; and the need for
    legislation to prevent and suppress the financing, preparation, facilitation,
    and commission of acts of terrorism.

Adherence to Interpretative Norms

[66]

An interpretation must not only comply with the legislative text and
    promote the legislative intent. It must also conform to accepted legal norms:
Sullivan
,
    at para 2.9. The presumption against tautology; same word, same meaning principle;
    the associated words principle; and the presumption against absurdity are the
    legal norms relevant to this case.

The Presumption against Tautology

[67]

We presume that legislative bodies avoid superfluous or meaningless
    words. Every word and phrase used in a statute has a meaning and a function. Thus,
    we eschew interpretations that render any portion of a statute meaningless,
    pointless, or redundant:
Winters v. Legal Services Society
, [1999] 3
    S.C.R. 160, at para. 48;
R. v. Katigbak
, 2011 SCC 48, [2011] 3 S.C.R.
    326, at para. 59.

The Same Words, Same Meaning Principle

[68]

We also presume the legislative body uses language in a careful and consistent
    manner. Thus, within a statute, the same words and phrases have the same
    meaning and different words and phrases have different meanings. Unless the
    context clearly indicates otherwise, words and phrases should be assigned the
    same meaning wherever they appear in a statute:
R. v. Zeokowski
,
    [1989] 1 S.C.R. 1378, at p. 1387.

The Associated Words Rule

[69]

The associated words rule may be invoked when two or more terms, linked
    by and or or, serve an analogous grammatical and logical function within a
    provision. The terms draw their colour from each other. We look to a common
    feature among the terms and rely on that common feature to resolve ambiguity or
    limit the scope of the terms:
Sullivan
, at para. 8.58;
R. v.
    Goulis
(1981), 60 C.C.C. (2d) 348 (Ont. C.A.), at pp. 352-353. See also,
Ontario
    v. Canadian Pacific Ltd
., [1995] 2 S.C.R. 1031, at para. 64;
R. v.
    Daoust
, 2004 SCC 6, [2004] 1 S.C.R. 217, at paras. 49-51;
Opitz v.
    Wrzesnewskvj
, 2012 SCC 55, [2012] 3 S.C.R. 76, at paras. 40-43.

[70]

The common theme of the phrasal string for the benefit of, at the
    direction of or in association with in s. 83.2 might be characterized as
    advancing the interests of the terrorist group: Compare,
Venneri
, at
    para. 54. An offence committed for entirely selfish motives would seem to fall
    beyond the reach of these terms:
Venneri
, at para. 54.

The Presumption against Absurdity

[71]

It is a well-established principle of statutory interpretation that the
    legislator does not intend to produce absurd results:
Rizzo
, at para. 27;
R. v. McIntosh
, [1995] 1 S.C.R. 686, at p. 722;
Morgentaler v. The
    Queen
, [1976] 1 S.C.R. 616, at p. 676. The interpretation of legislation
    is not an arid, academic exercise. It involves the application of legislation
    to a group of facts. It has consequences for the persons involved and others
    beyond them. An interpretation that leads to an absurdity may be rejected in
    favour of a plausible alternative that avoids the absurdity.

The Principles Applied

[72]

As I will explain, I agree with the trial judge that a person cannot, at
    one and the same time, commit an offence and be the sole member of a terrorist
    group for which the offense was committed. Consequently, I would reject this
    ground of appeal.

[73]

The words of the section are largely unrevealing about how they should
    be interpreted, except that they appear to contemplate two different
    constituents: the person who commits the indictable offence, a principal under
    s. 21(1)(a), and the terrorist group whose interest the principal seeks to
    advance.

[74]

Section 83.01(1) defines several terms, among them, terrorist group.
    In its normal, natural, everyday sense, the word group refers to a number of
    persons or things, with some common relation or purpose, classed together
    because of the degree of similarity. Despite the inclusion of a person in the
    term entity, the central focus of the definition of terrorist group remains
    on multiple individuals.

[75]

As the trial judge and respondent point out, the position the appellant
    advances  that the principal and the terrorist group may be one and the same
    person  is inconsistent with the modern principle of statutory interpretation.
    The appellants position, for all practical purposes, focuses exclusively on
    the single word person as it appears in the definition of entity. This
    ignores the admonition in
Rizzo
that interpretation involves more than
    a textual analysis and requires consideration of the context in which the words
    appear, Parliaments intent, and the rules of statutory interpretation.

[76]

The principal focus of the legislation is on associative activity. Under
    s. 83.2, the prosecution must establish a nexus or relationship between the
    principals offence and the group. The legislation aims to suppress terrorist
    activity, specifically, the commission of serious domestic offences that, to
    some extent at least, advance the purposes of a terrorist group. This it does
    by creating an offence for conduct that amounts to an indictable offence to
    advance the interests of a group of which the principal need not even be a
    member. This purpose is not furthered where the principal and group are one and
    the same. Or, put another way, where the offence is committed for the
    principals own purposes.

[77]

The phrases that establish the relationship between the offence and
    terrorist group  for the benefit of, at the direction of and in association
    with  all refer to a bilateral relationship. Two parties. Not one. When
    Parliament wishes to describe conduct done for the self-interest of an actor,
    it uses different language. For example, in s. 4(3)  for the use or benefit
    of himself or of another person. Or in s. 121(1)(a)(ii)  for himself or
    another person. No such language appears in s. 83.2.

[78]

The appellants position also tends to relegate the phrase for the
    benefit of, at the direction of or in association with to mere surplusage. Where
    the principal and terrorist group are one and the same, the principal would
    commit the offence for the benefit of, at the direction of, or in association
    with him or herself. Such an interpretation contravenes the proscription
    against tautology, that is to say, that Parliament avoids inclusion of
    meaningless or superfluous words.

[79]

As the trial judge observed, had Parliament intended to create an
    offence of committing an indictable offence for a terrorist purpose, which is
    the effect of the appellants construction of s. 83.2, Parliament could easily
    have done so. This would capture the lone wolf terrorist. But Parliament
    declined to do so. In these circumstances, it is a reasonable inference that
    Parliament did not intend that s. 83.2 would apply to the lone wolf terrorist.

[80]

But the lone wolf does not escape criminal liability. Consider s.
    83.27(1):

Notwithstanding anything in this Act, a person convicted of an
    indictable offence, other than an offence for which a sentence of imprisonment
    for life is imposed as a minimum punishment, where the act or omission
    constituting the offence also constitutes a terrorist activity, is liable to
    imprisonment for life.

[81]

Section 83.27 subjects a lone wolf terrorist to a potential sentence of
    imprisonment for life, the same punishment as under s. 83.2, for committing an
    indictable offence amounting to a terrorist activity. This provision undercuts
    the appellants submission that to interpret s. 83.2 as inapplicable to the
    lone wolf terrorist leaves a lacuna in Part II.1. The appellants
    interpretation of s. 83.2 in a case such as this would render ss. 83.201 and
    83.202 redundant.

[82]

Therefore, I would not accede to this ground of appeal.

Ground #2: The Issue of Remedy

[83]

The issue of remedy arises only in the event that the verdict of acquittal
    in respect of the offence in s. 83.2 is set aside. The appellant has failed in
    that endeavour; thus the appeal from that acquittal must be dismissed.

[84]

The appellants notice of appeal did not include an appeal from the
    finding that the respondent was not criminally responsible on account of mental
    disorder in respect of the underlying or predicate offences. At trial, it was
    beyond controversy, that at the time he entered the recruiting centre and
    attacked the various officers of the Canadian Forces working there, the
    respondent:

i.

was
    suffering from a mental disorder, schizophrenia;

ii.

appreciated
    the nature and quality of his conduct; and,

iii.

knew that his conduct
    was legally wrong; but,

iv.

did not know that his
    conduct was morally wrong.

This entitled the respondent to
    a finding under s. 672.34 of the
Criminal

Code
that he
    committed the acts that formed the basis of the underlying or predicate
    offences but was not criminally responsible for those acts on account of mental
    disorder.

[85]

Absent an appeal from the not criminally responsible verdict, available
    to the Crown under s. 676(1)(a) of the
Criminal

Code
, there
    is no basis upon which to set aside this finding, let alone give directions
    about the manner in which fresh trial proceedings should be conducted.

Disposition

[86]

I would dismiss the appeal.

Released: DW December 20, 2019

David Watt J.A.

I agree. M. Tulloch
    J.A.

I agree. P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Atkinson, 2019 ONCA 988

DATE: 20191213

DOCKET: C65158

MacPherson, Sharpe and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Atkinson

Appellant

John Atkinson, self-represented

Erin Dann, duty counsel

Andrew Hotke, for the respondent

Heard: December 9, 2019

On appeal from the conviction and the sentence
    imposed on February 23, 2018 by Justice Enno Meijers of the Ontario Court of
    Justice.

APPEAL
    BOOK ENDORSEMENT

[1]

We are not persuaded that the trial judge made
    any reversible error in his reasons for conviction. He accepted the
    complainants evidence that the appellant drove the dump truck at her only to
    become stuck on some rocks. He rejected the appellants evidence that he backed
    the truck up to the rocks. The photographs relied on by the appellant do not
    demonstrate any material error that would justify this court in interfering
    with the conviction.

[2]

Nor are we persuaded that the trial judge erred
    by refusing the appellants adjournment request after sentencing submissions
    had been made to bring a s. 11(b) application. The appellant was represented by
    counsel throughout the trial and the s. 11(b) issue was raised from time to
    time. However, no s.11(b) application was ever brought. It was open to the
    trial judge to find that the very last-minute request for an adjournment to
    bring a s. 11(b) application was not made
bona fide
but rather the
    product of an effort to derail the proceedings and to give the appellant time
    to further contest the finding supporting the conviction.

[3]

Finally, we see no basis for concluding that
    there was any impropriety in the appointment of amicus or in the conduct of
    amicus.

[4]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beckford, 2019 ONCA 998

DATE: 20191218

DOCKET: C63560

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Immanuel Constantin Beckford

Appellant

Anthony Moustacalis and Christen Cole, for the appellant

Katie Doherty, for the respondent

Heard: November 4, 2019

On appeal from the convictions entered on November 24,
    2016 by Justice J. Elliott Allen of the Ontario Court of Justice.

Huscroft J.A.:

OVERVIEW

[1]

The appellant pleaded guilty to five charges arising
    out of his participation in a violent home invasion. He was sentenced to a term
    of 15 months imprisonment, which included a 12-month mandatory minimum penalty
    for one charge of use of an imitation firearm in the commission of an offence.

[2]

The appellant seeks to have his guilty pleas
    struck because of the ineffective assistance of counsel. He says that trial
    counsel did not properly advise him as to the strength of the Crowns case and
    his potential defences, and that he did not understand he was pleading guilty
    to an imitation firearm charge and that it carried a mandatory minimum sentence.
    The appellant informed the court that he has abandoned his sentence appeal.

[3]

I conclude that the appellants plea to the
    imitation firearm charge must be struck on the basis that it was uninformed,
    and that he received ineffective assistance of counsel in respect of the four
    additional charges.

[4]

I would allow the appeal for the reasons that
    follow.

BACKGROUND

[5]

Jeremy Draper was a drug dealer. On February 23,
    2016, he was contacted by a man seeking to buy marijuana, and arrangements were
    made to complete the purchase at his home on February 26, 2016. The appellant
    and seven other men drove to Drapers home in two cars. The appellant was armed
    with a metal baseball bat and the other men brought their own weapons.

[6]

At approximately 1:45 a.m., one of the
    appellants co-accused was invited into Drapers home. Shortly afterwards, a
    group of six men rushed into the home and assaulted Draper. He was hit twice
    with a metal baseball bat and one of the intruders pointed an imitation firearm
    at his face. He fled into a bedroom and locked himself in with his girlfriend.
    Drapers roommate, Spencer Gorman, came out of his room and was beaten with the
    baseball bat and a baton, and was kicked and punched. He suffered several
    injuries before returning to his bedroom and barricading his door. The
    intruders stole numerous items including a laptop computer, a video game system,
    and approximately 68 grams of marijuana.

[7]

The appellant and four co-accused fled from the
    scene in a blue BMW. Three unidentified men fled in a white car. The white car
    was never found but the blue BMW was stopped by the police approximately 15
    minutes after the incident. The appellants brother was driving the BMW and the
    appellant was in the front seat.

[8]

All of the occupants were arrested and the car
    was searched incident to the arrests. Among other things, the police found a
    jar containing approximately 68 grams of marijuana, three pieces of pre-cut
    duct tape, a grey and black balaclava, a grey neck warmer, the missing laptop
    computer, a baton handle (the bottom portion of which was found inside Drapers
    home), blue latex gloves, and two black replica firearms.

THE FRESH EVIDENCE

[9]

The trial record in this case is brief. It is
    supplemented by affidavits sworn by the appellant, his father, trial counsel,
    and the appellants parole officer, all of whom were cross-examined by Crown
    counsel in accordance with this courts protocol for claims of ineffective
    assistance of counsel.

[10]

The Crown concedes that the fresh evidence
    should be admitted. This concession is appropriate. In my view, it is in the
    interests of justice to admit the evidence pursuant to s. 683(1) of the
Criminal
    Code
, R.S.C., 1985, c. C-46.

The appellant retains counsel and gets bail

[11]

Mr. Howard Goldkind was retained by the
    appellants father, Barrington Beckford, following the appellants arrest. He
    knew Mr. Goldkind and considered him a friend. Mr. Goldkind also agreed to act
    for the appellants brother.

[12]

Mr. Goldkind secured the release of both the
    appellant and his brother following contested bail hearings. I will refer to
    Mr. Goldkind as trial counsel for the balance of these reasons.

The appellants meetings with trial counsel

[13]

The appellant says that he never met with trial
    counsel at his office. Their initial meeting was at a restaurant and subsequent
    meetings were held in waiting areas and anterooms at the Guelph courthouse,
    before and after court appearances. Trial counsel confirms that he never met
    with the appellant at his office but says that he spoke with the appellant many
    times by telephone and had a long meeting with him on November 24, 2016, just
    before the appellant pleaded guilty.

[14]

The appellant says that he repeatedly told trial
    counsel that he was eager to move forward with his case, as he found the bail
    conditions stressful and was concerned that they might interfere with his plans
    to seek a patent for an algorithm he had developed. Trial counsel acknowledges
    that the appellant claimed he was working on a patent, but he described this as
    pipe dreams and ludicrous and said he didnt give it a minutes credence.
    He thought it was an absolute joke. However, he also acknowledges that the
    appellant was keen to get the matter dealt with and move on with his life.

The judicial pre-trial

[15]

A pre-trial was held on September 9, 2017 in the
    Ontario Court of Justice before the trial judge. The appellant says that trial
    counsel informed him following the pre-trial that if he pleaded guilty to four
    counts (break and enter, two counts of assault with a weapon, and possession of
    marijuana), the remaining charges would be withdrawn. He says that trial
    counsel told him that the Crown was seeking a 16-month sentence, which might be
    reduced to a lengthy period of probation or a period of house arrest if he had
    a good pre-sentence report.

[16]

Trial counsel testified that, following the
    meeting, he informed the appellant that the Crown would be seeking a sentence
    of 12-18 months if the appellant pleaded guilty to four charges. He considered
    this a very attractive outcome.

[17]

Trial counsel denies that he told the appellant
    he might be able to avoid jail. He did testify, however, that he was confident
    that he had without question the one Judge in that jurisdiction who would not
    send him to the penitentiary; the one Judge in that jurisdiction who would be
    impressed by the pleas and the PSR [pre-sentence report] and that hed be
    foolish not to take advantage of that.

The decision to plead guilty

[18]

The appellant says that he would not have
    pleaded guilty if he had known that he was certain to be sentenced to a jail
    term. He says that he decided to plead guilty on the understanding that he
    might be able to avoid going to jail and that the evidence against him was
    conclusive of his guilt, including DNA and fingerprint evidence that trial
    counsel told him was in the additional disclosure package he had received. The
    appellant maintains that he was not advised that he would be pleading to the
    imitation firearm charge, or that this charge included a 12-month mandatory minimum
    term of imprisonment.

[19]

Trial counsel denies informing the appellant
    that there was DNA or fingerprint evidence that inculpated him. He testified
    that he did not read the DNA report and did not know whether there was
    fingerprint evidence. He says that he offered the disclosure to the appellant but
    the appellant declined to read it, saying that he wanted to plead guilty to the
    charges.

Entering the guilty pleas

[20]

On November 24, 2016, counsel for the Crown advised
    the court that she was seeking guilty pleas to counts three, five, eight, eleven,
    and the
Controlled Drugs and Substances Act
S.C. 1996, c. 19 (the
CDSA
)
    count for possession of marijuana charge  a total of five of 12 counts in the
    two informations. Trial counsel stated, I just have four counts that we were
    going to resolve.

[21]

The court noted that the marijuana charge was on
    a separate information, and both Crown counsel and trial counsel indicated
    their agreement. Crown counsel reiterated that she was seeking guilty pleas to
    counts three, five, eight, eleven, and the separate marijuana count.

[22]

Trial counsel informed the court that he had
    conducted a plea inquiry with the appellant. The following exchange took place:

Mr. Goldkind: I can indicate to Your Honour,
    subject to your queries Ive very carefully explained to my client the
    ramifications of the giving up of the right to a trial

The Court: Right.

Mr. Goldkind: etcetera, etcetera, but I, I
    did indicate to him that thats always subject to queries from Your Honour.

The Court: Okay, I dont need to  with
    experienced counsel like you I certainly dont need to make an inquiry. I
    assume your client understands his options with respect to going

Mr. Goldkind: Come forward, sir.

The Court: going to trial and wants to be
    tried in this court today and waives the reading of the election?

Mr. Goldkind: His exact words, Your Honour,
    which Ill reiterate, are he wants to resolve this and move on with his life.

The Court: Okay, all right, in this court

Mr. Goldkind: In this

The Court: today?

M. Goldkind: court.

The Court: Thank you.

Mr. Goldkind: Right?

Immanuel Beckford: Yes.

The Court: arraign him, please.

[23]

The trial judge did not conduct a plea inquiry.

[24]

The appellant was then arraigned on five charges: break and enter of a dwelling-house
    (s. 348(1)(b)); use of an imitation firearm while committing an indictable
    offence (s. 85(2)(a)); assault with a weapon: baseball bat (s. 267(a)); assault
    with a weapon: metal baseball bat & baton (s. 267(a)); and possession of
    cannabis (s. 4(1) of the
CDSA
). He pleaded guilty following the
    reading of each charge.

[25]

Trial counsel acknowledged the facts after they
    were read in. The trial judge then stated: [The appellant is] a party to those
    offences. Trial counsel replied: Absolutely. The court then entered findings
    of guilt on all counts.

[26]

The appellant says that he attempted to get trial
    counsels attention during his plea because he was confused. Trial counsel says
    that this is untrue and that the guilty pleas proceeded without incident.

Post-plea discussions

[27]

The appellant says that he attempted to reach trial
    counsel between plea and sentencing, but his calls were not returned. The
    appellants father reached trial counsel by phone and the appellant heard the
    call. He says that his father asked why the appellant had pleaded guilty to the
    imitation firearm charge, and trial counsel assured him that there was nothing
    to worry about because the judge would not take it into account at sentencing.

[28]

Trial counsels evidence is that he spoke with
    the appellant following his guilty pleas. The appellant expressed no concerns
    and did not speak about the imitation firearm. Trial counsel says that he
    remained in contact with the appellant and returned a number of phone calls from
    the appellant and his father. In particular, he says that he spoke with the
    appellants father by telephone concerning a charge relating to a shotgun. He
    told him that the shotgun would not be taken into account at sentencing because
    the shotgun charge had been withdrawn. Trial counsel says that the imitation
    firearm was not mentioned, nor did they speak about an airsoft pistol.

Sentencing

[29]

The appellant was sentenced on March 3, 2017.
    The appellant says that prior to the sentencing hearing he reiterated his
    confusion as to what he had pleaded guilty to, and that trial counsel did not
    inform him of the sentence he would be asking the judge to impose.

[30]

Trial counsel called the appellants father as a
    character witness and provided character reference letters to the court. He
    made the following submission, which did not include a specific recommendation
    as to the appropriate sentence:

Mr. Goldkind: Your honour, Ive spent hours
    with this young man. He realizes the gravity of what took place. Hes ashamed
    of himself. Hes ashamed of letting down his family and you can see the
    antecedents he comes from. Hes ashamed of hurting his father terribly. My
    view, your honor, with respect is that he should receive the sentence that
    would not obviously ruin his prospects for rehabilitation. Hes been on a tight
    leash for a year and more importantly, hasnt breached in any way, shape or
    form. So, your honor, we discussed at the JPT [judicial pre-trial] some time
    ago a period of incarceration. I would think this might call for a period. I
    leave it completely in your honors wisdom. The others, to my surprise, I think
    fair to say decided to roll the dice and they want to, they want to take their
    chances, and thats fine, but my client indicated, your honor, that he wanted
    to plead guilty, he has pleaded guilty. Hes accepted responsibility. Hes ashamed
    of himself. Hes hurt the community. Hes hurt the parties in question, but he
    is entered a plea very, very quickly. Thank you very much, your honour.

[31]

Crown counsel sought a sentence in the upper
    reformatory range, noting that s. 85(2)(a) carries a mandatory minimum
    sentence of one year, which he said, has to ultimately inform this court and
    ultimately binds this court.

[32]

The trial judge expressed strong disapproval of
    mandatory minimum sentences, stating that he regarded them as an insult of the
    judiciary by the legislature. He acknowledged that he was required to impose
    the mandatory minimum in this case but added I dont have to be informed by
    it. The trial judge acknowledged that there was a limit to how far he could go
    in being creative with the other sentences to minimize the impact of [the
    mandatory minimum] on the accused. He stated that if he were concerned only
    about the welfare of the appellant he would impose a conditional sentence, but he
    acknowledged that he did not have the power to do so.

[33]

The trial judge found that the appellant had
    every factor that could be present in mitigation of sentence and expressed the
    concern that incarceration would have a corrupting effect. He sentenced the
    appellant (and his brother) as follows:

The best I can do for them in all the
    circumstances is an aggregate sentence of 15 months, and I do that taking into
    account that theyve both been on house arrest for a year, that that is a very
    considerable penalty in itself. I take into account that they have complied
    scrupulously with the terms of their bail. I take into account their remorse and
    their plea, but this is one of the most serious crimes that can happen and the
    sentences being suggested right across the board, nobodys suggesting they
    shouldnt go to jail given the law the way it is now and so the sentence will
    be on all offenses, except the gun offense. There will be sentences of three
    months in custody concurrent to each other and there will be a year consecutive
    with respect to the 85(2). The aggregate sentence with respect to each is 15
    months. I quite frankly dont see the need for probation in this case. They
    have extremely supportive families. They have been rehabilitated by their
    arrest and I dont think theyre a danger to the public in the future, so Im
    not putting them on probation. There will be DNA orders. There will be Section
    109 orders for life for the possession of weapons.

[34]

The appellant says that he learned of the
    mandatory minimum sentence for the imitation firearm offence only after he
    heard Crown counsel discuss it and the trial judge refer to it.

Post-sentencing discussions

[35]

The appellant says he learned that he had been
    convicted of the imitation firearm charge when he reviewed paperwork provided
    to him after he had been incarcerated. The appellants father says that trial
    counsel informed him that his notes did not reflect five convictions and that
    the mandatory minimum penalty was the result of two convictions for assault
    with a weapon.

[36]

Trial counsel says that he spoke with the
    appellants father several months following sentencing and asked how many charges
    the appellant had pleaded guilty to. Trial counsel told him that the appellant
    had pleaded guilty to four charges.

DISCUSSION

[37]

The appellant says that his guilty plea was not
    informed because of the ineffective assistance of counsel. He says, first, that
    he was not properly advised by his counsel as to the strength of the Crowns
    case and his potential defences. Second, he says that he was unaware that he
    was entering a plea to the imitation firearm offence.

[38]

In my view, whether the appellants plea to the
    imitation firearm charge was informed may be determined without regard to the
    ineffective assistance of counsel analysis. As the Supreme Court said in
R.
    v. Wong
, 2018 SCC 25, [2018] 1 SCR 696, at para. 24, the ineffective
    assistance of counsel claim adds an unnecessary layer to the analysis when
    dealing with the issue of whether a plea was informed; it is concerned with the
    source of the plea problem rather than the plea itself. I will address the imitation
    firearm plea first, then consider whether the appellant received ineffective
    assistance of counsel on the balance of the charges.

The imitation firearm plea

[39]

A valid plea of guilty must be voluntary, unequivocal, and
    informed: see
Wong
at para. 3; and
R. v. T.(R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519
. Whether the appellants
    plea was voluntary and unequivocal is not at issue in this case. The question
    is whether his plea was informed.

[40]

In
order for a plea to be informed, it must be
    entered by an accused who is aware of the nature of the allegations made
    against him or her, the effect of his or her plea, and the consequences of that
    plea. See
R. v. R.P.
, 2013 ONCA 53, 302 OAC
    78, at para. 40, leave to appeal refused, [2013] S.C.C.A. No. 133, citing
T.(R.)
,
at p. 519;
R. v. Lyons
,
[1987] 2 S.C.R. 309, at pp. 371-372.

[41]

The validity of a plea of guilty is normally
    determined by a plea inquiry conducted by a trial judge. As Watt J.A. explained
    in
R. v. D.M.G.
, 2011 ONCA 343, 105 OR (3d)
    481, at para. 42:

For the plea to be informed, the accused must understand that
    the plea is an admission of the essential elements of the offence and that the
    presiding judge is not bound by any agreement made by the accused and the
    prosecutor. The accused must also understand the nature and consequences of a
    guilty plea. Under s. 606(1.2) the failure of the trial judge to fully inquire
    about the voluntary and informed nature of the accuseds plea does not affect
    the validity of that plea. But an inquiry is mandatory nonetheless.

[42]

As the above extract from the transcript
    demonstrates, the trial judge decided that it was not necessary to conduct a
    plea inquiry because he trusted that trial counsel had properly advised the
    appellant.

[43]

This appeal might well have been avoided if the
    trial judge had conducted a plea inquiry rather than relying on counsel to have
    done so. In the absence of a plea inquiry, this court must determine the validity
    of the appellants plea based on the record, including the fresh evidence.

[44]

Although the appellant states categorically in
    his affidavit that he was not advised by trial counsel concerning the imitation
    firearm charge, or that it came with a mandatory minimum sentence, in
    cross-examination he acknowledged that he met with trial counsel prior to
    entering his plea and had a very brief plea inquiry. He knew that he was
    giving up his right to a trial but says that he was not informed of the
    imitation firearm charge.

[45]

The appellants evidence is, on its own, insufficient
    to establish that he was not informed as to the imitation firearm charge.
    However, based on trial counsels evidence I am satisfied that the appellants
    plea to the imitation firearm charge was not informed. Trial counsel did not
    advise the appellant that he would be pleading to the imitation firearm charge,
    and as a result the appellant was unaware of that charge and the mandatory
    minimum sentence it carried.

[46]

Trial counsels testimony and preparation notes
    reflect, at the very least, confusion about the counts that would be involved
    in the plea. Trial counsel testified at several points that the appellant was
    going to be pleading to four counts, not five: break and enter to commit the
    indictable offence of theft, assault with a metal bat, assault with a metal bat
    and baton, and possession of marijuana. He also testified that, at the judicial
    pre-trial, he made a note indicating that the Crown would be asking for a
    sentence of 12-18 months. He then gave the following evidence:

Q: So thats the deal you think is very
    attractive?

A: Absolutely.

Q: Plead to those four counts and that
    potential range of sentence.

A: Yes. You have to understand, sir, this note
    is a summary, writing as fast as I can, of what took place.

Q: But what I just said is accurate; right?

A: It appears so except clearly  where it
    says assault weapon twice, clearly one of those we believe to be imitation, but
    that wasnt written.

Q: Im going to suggest to you that thats not
    clear at all, Mr. Goldkind.

A: Well, its clear to me.

[47]

Trial counsel acknowledges that his notes from
    the judicial pre-trial and from his meeting with the appellant on the day of
    the guilty plea do not refer to the imitation firearm charge. His note from the
    meeting with the appellant on the day of the guilty plea read: Four charges
    here, not the gun charge.

[48]

Trial counsel gave the following evidence about
    the notes he took on the day of the plea:

Q: And these are notes from that day, November
    24. And again, these dockets reflect about four lines from the top of your note
    that there were guilty pleas to four charges, as discussed in the JPT; correct?

A: Yes.

Q: Not five; right?

A: Right.

Q: So Im going to suggest to you even after
    the hearing, after youre back out at court, youre still confused about what
    has happened; you think its four counts when it was five.

A: I wasnt confused sir. I thought it was
    four counts.

[49]

Trial counsel acknowledges that he informed the
    appellants father that the appellant had pleaded guilty to four charges. His
    testimony and notes surrounding the mandatory minimum likewise suggest that the
    imitation firearm issue was not discussed. Trial counsel also acknowledges that
    neither his note from the judicial pre-trial nor his note from the day of the
    plea refers to a mandatory minimum sentence, and that the mandatory minimum
    sentence was not discussed in court on the day of the plea. He testified as
    follows:

Q: Where in that transcript, Mr. Goldkind, is
    it made plain to Mr. Beckford that hes facing a mandatory minimum sentence?

A: I dont think those words are used.

Q: Exactly.

A: By no one.

Q: Including you; right?

A: Absolutely. Youre right.

Q: In fact, following this day, November 24, 2016,
    you continued to believe that he had pleaded guilty to four counts; correct?

A: I did. I did.

[50]

Despite this testimony, trial counsel continued
    to reject the suggestion that he was confused and insisted that he would have
    raised the matter with the court if he had been confused. He insists that he knew
    what the plea deal was and that it included a plea to the imitation firearm charge.
    Trial counsel denies that the appellant raised concerns about the imitation
    firearm charge following his pleas. He says that the appellant was concerned
    about the charges he faced involving the shotgun that was allegedly used in the
    home invasion, and that he informed the appellant that the trial judge had
    disabused his mind of a shotgun.

[51]

It may be that trial counsel conflated the
    shotgun charges  which were withdrawn  with the imitation firearm charge. But
    the reason for the apparent confusion is irrelevant. I am satisfied that trial
    counsel did not advise the appellant concerning the imitation firearm charge
    and its consequences  in particular, the one-year mandatory term of
    imprisonment it included. I have no doubt that the appellant wanted to plead guilty
    and put the matter behind him, as trial counsel says, and that trial counsel
    determined that the total sentence the appellant would likely receive was
    advantageous. Nevertheless, the appellants choice to plead guilty to the
    imitation firearm charge was not made on an informed basis.

[52]

Counsel for the Crown submits that appellants
    confusion regarding his plea to the imitation firearm charge is undercut by his
    silence during and following the plea proceedings. She states that the
    appellant is a university-educated person and it is not credible to accept that
    he fundamentally misunderstood the nature of the charge to which he pleaded
    guilty.

[53]

This submission must be rejected. The appellant retained
    experienced counsel to protect his interests and was entitled to rely on
    counsel. He cannot be faulted for failing to act on his own behalf during or
    following the plea proceedings.

[54]

I conclude that the appellants plea to the
    imitation firearm count was not informed. It must be set aside.

The remaining charges

[55]

It is not necessary to determine whether the appellants imitation
    firearm plea taints his remaining pleas. As I will explain, those pleas must be
    struck because the appellant received ineffective assistance of counsel.

[56]

The appellant says that trial counsel failed to properly advise him as
    to the strength of the Crowns case before he decided to plead to the remaining
    charges. In particular, he points to the following shortcomings in the assistance
    trial counsel provided:

·

He failed to consider the ability of the victims in the home to
    identify the appellant;

·

He failed to interview the appellant about the nature of his
    arrest or the circumstances of his statement to the police, including inculpatory
    statements made in the absence of consultation with counsel, and similarly, he
    failed to advise the appellant of any defences, including
Charter
applications concerning the inculpatory statements and the search of his
    cellphone, again without consultation with counsel; and

·

He told the appellant that DNA and fingerprint reports directly
    implicated him in the metal baseball bat assault, when in fact the DNA report
    did not implicate the defendant and there was no fingerprint report.

[57]

In order to succeed on his claim of ineffective assistance of counsel in
    respect of his pleas, the appellant must establish, on a balance of
    probabilities:

i)

the facts on which the claim is grounded;

ii)

the incompetence of the representation provided by trial counsel
    (the
performance
component); and,

iii)

a miscarriage of justice as a result of the incompetent representation
    by trial counsel (the
prejudice
component).

See
R. v. Cherrington
,
    2018 ONCA 653, at para. 25.

[58]

Watt J.A. summarized the courts approach in
R. v. Girn
, 2019
    ONCA 202, 373 CCC (3d) 139, at para. 92:

Once the facts that underpin the claim have been established,
    the ineffective assistance analysis begins with the prejudice component. This
    component engages a determination of whether a miscarriage of justice has
    occurred. Either because of some procedural unfairness in the proceedings, a
    compromise of the reliability of the verdict or some combination of both
    consequences:
R. v. B. (G.D.)
, 2000 SCC 22, [2000] 1 S.C.R. 520,
    at paras. 28, 34;
Cherrington
, at para. 27. Where the reviewing
    court does not make a finding of prejudice, it is undesirable for the court to
    conduct an inquiry into and render a conclusion upon the performance
    component:
B. (G.D.)
, at para. 29;
R. v. Lavergne
,
    2017 ONCA 642, at para. 17.

[59]

With respect to the prejudice component, the appellant argues that he
    pleaded guilty in reliance on trial counsels advice, believing that trial
    counsel had assessed the case against him when, in fact, he had failed to do
    so.

[60]

I accept that, if this is the case, a finding of prejudice should
    follow. The appellant need not show that he had a viable defence to the charges
    against him in order to have his pleas set aside. As the Supreme Court has
    stated, prejudice results from pleading guilty and thereby giving up the right
    to trial:
Wong
, at para. 23, citing
R. v. Rulli
, 2011 ONCA
    18, at para. 2; see also
R. v. Quick
, 2016 ONCA 95, 129 O.R. (3d) 334,
    at para. 38.

[61]

The performance component relates to trial counsels alleged
    incompetence. The assessment proceeds from a strong presumption of competence,
    is tested against a standard of reasonableness, and accords no place to
    hindsight:
Cherrington
, at para. 26. The main issues are whether the
    appellant has established the facts necessary to ground his claim and whether
    those facts reflect the incompetence of trial counsel.

[62]

Counsel for the Crown submits that the appellant has failed to meet his
    burden to establish the facts on which his claim for ineffective assistance of
    counsel is grounded. She says that the appellants version of events is not
    reasonably capable of belief: his account is inconsistent and evasive, and he
    has a strong motivation to fabricate his claims. According to Crown counsel,
    the evidence of trial counsel should be preferred. She emphasizes the
    presumption in favour of competence and highlights trial counsels lengthy career
    at the criminal bar. The case against the appellant was strong and it was
    reasonable to think that the appellant was at risk of receiving a lengthy
    penitentiary term if convicted. Trial counsel, she submits, exercised
    reasonable judgment in the circumstances.

[63]

I am not persuaded by the appellants evidence at various points. It is,
    as the Crown suggests, self-serving to say the least. If there were no
    additional evidence, the claim of ineffective assistance of counsel would fail.

[64]

But trial counsels evidence establishes the facts necessary to support
    the appellants claim. Indeed, it is clear from a reading of trial counsels
    evidence that his performance did not fall within the range of reasonable
    professional assistance.

[65]

Plainly, trial counsel formed the view that the case against the
    appellant was so strong  and the deal offered was so advantageous  that the
    appellant should plead guilty. Nevertheless, it was trial counsels duty to assess
    the strength of the evidence against the appellant before advising him, and his
    own evidence establishes that he did not adequately do so. That evidence
    suggests that trial counsels knowledge of the appellants guilt  and disapproval
    of the appellants actions  led to his failure to take appropriate actions on the
    appellants behalf.

Identification evidence

[66]

Trial counsel was examined at length concerning the ability of the
    occupants of the house that was invaded to identify the appellant. He testified
    that the appellant admitted to him that he went into the house, swinging the
    bats. The following exchange took place:

Q: Thats not the question, Mr. Goldkind. Im sorry to
    interrupt you. The question is not whether [the appellant] said he was in the
    house. The question is what discussions did you have with him about the ability
    of the Crowns witnesses to identify him?

A: I think all I can say is that when a client admits quite
    openly that he went in the house; was wielding the bat like a bludgeon and enjoyed
    every minute of it, that tells me that there is no need to examine him further
    about the identification.

Q: Because you say [the appellant] admitted the offense to you,
    you thought you had no obligation to test the strength of the Crowns case.

A: No, I wont go that far, but its very significant to me
    when a client admits openly and with pleasure his role in the matter. Thats a
    very telling factor.

Q: So I just want to understand exactly what youre saying.

A: Sure.

Q: Is it your position that because [the appellant] admitted to
    you his presence in the house, that your obligation to test the Crowns case
    and to consider whether they could actually prove it if it went to trial was no
    longer your obligation?

A: Ill answer it this way. When Michael Beckford [the
    appellants brother] admitted to me that he drove the car and waited outside
    purposely and when [the appellant] admitted to me his role in the matter and
    what he took with him in the house, that stops me from cross-examining my
    client about the strength of the Crowns witnesses.

The appellants Charter
    rights

[67]

Trial counsel acknowledged that he does not know whether the appellant
    called counsel while he was in custody after arrest and did not discuss the
    matter with him because he did not think it was relevant. Nor did he query the
    circumstances of the appellants strip-search, the fact that he was held for
    approximately 10 hours without being brought before a justice before he gave
    his statement, or the propriety of the police request for the appellant to
    provide his cell phone password.

[68]

In summary, trial counsel did not consider possible
Charter
claims the appellant might have made. His evidence was that the police had
    treated [the appellant] extremely fairly in all circumstances; that the police
    hadnt roughed him up or intimidated him but had treated him like a gentleman;
    and that he hadnt been mistreated in any way, shape or form.

The appellants police statement

[69]

Trial counsel was asked a series of questions concerning the appellants
    police statement. He rejected the suggestion that the appellants statement to
    the police that he was outside the house is at least partially exculpatory of
    the appellant, describing the suggestion as ludicrous and quibbling with the
    semantics. The statement was not totally truthful, in his view. He testified:

Q: So from your point of view youre satisfied that he went
    into the house, therefore what his statement says is irrelevant to your
    assessment of the strength of the Crowns case?

A: Absolutely correct.

[70]

It was put to trial counsel that the appellants statement was ambiguous
    and potentially exculpatory concerning his knowledge of imitation firearms. For
    example, the appellant stated that his brother has a replica BB gun, but I
    know he didnt have it on him; that its possible one of the other guys
    brought it; that I dont know exactly what weapons the men in the white car
    brought; and that I didnt see a sawed-off shotgun, but someone else
    mentioned it. Trial counsel gave the following evidence:

Q: Im going to suggest to you, again, that the statement makes
    it plain that hes  whether or not its true, whether or not its true, that
    hes making assumptions about whether or not theres a gun, a replica shotgun;
    correct?

A: Sir, Ive been dealing with criminals for 50 years. This is
    a perfect illustration of a young man who was wanting to tell the truth, but
    not wanting to rat out other people. Hes deflecting; hes minimizing his role.
    He knew darn well there was a shotgun; he knew there was an imitation gun.

Q: But thats not apparent on the face of his statement; is it?

A: Its apparent to me.

Q: Thats not what hes

A: Its apparent to anybody with any knowledge of the criminal
    system and criminal conduct. Read it carefully. Its as clear as day.

Q: So you dont think that that portion of the statement is
    exculpatory

A: Not at all.

The DNA and fingerprint
    evidence

[71]

Trial counsel denies that he told the appellant there was DNA evidence
    inculpating him, but his evidence raises a different problem: he admits that he
    did not even read the DNA report. He denies telling the appellant that
    fingerprint evidence inculpated him and says that he offered the fingerprint
    evidence to the appellant at the courthouse. However, when it was suggested to
    him that there was no fingerprint evidence, he acknowledged that he does not
    know whether or not this was because he did not read the disclosure package
    provided on the day of the judicial pre-trial:

Q: If theres no [fingerprint] evidence you couldnt have
    offered it to him, could you?

A: No, I offered him the package that the police gave me at the
    courthouse.

Q: But you didnt consider that package at all because you
    didnt think it important?

A: Why would I consider it, sir, when the client told me that
    hes guilty and he wants to plead guilty?

Q: Well, because you might want to consider whether its in
    your clients interest to plead guilty based on an assessment of the Crowns
    case.

A: Well, with all due respect, youre being a Monday morning
    quarterback, which is foolish. A client tells you he did it; the client wants
    to get on with it; the client wants to do his time; he wants to avoid the penitentiary;
    end of story.

Its not my obligation to cross-examine a client to rip apart
    his possible defences. Youve got my position.

The reasonableness of
    counsels performance

[72]

In summary, trial counsels evidence establishes that he never met with
    the appellant at his office; did not obtain written instructions; did not
    review the DNA disclosure package; did not adequately assess the strength of
    the Crowns case; did not consider possible
Charter
infringements; and
    made no submissions as to the appropriate sentence.

[73]

The recurring theme in trial counsels evidence is an insistence that
    his knowledge of the appellants guilt obviated the need for him to take the
    sorts of steps that would normally be taken before advising an accused person regarding
    a guilty plea. Moreover, trial counsels evidence is replete with inappropriate
    criticism of his client and disapproval of his conduct and character. For
    example, he testified that the appellant treated the matter as a caper and a
    big joke. Trial counsel said that the appellant enjoyed hitting people with
    the bat and seemed to revel in what he had done.

[74]

Whatever trial counsel may have thought of his client, it was his duty
    to represent him to the best of his abilities. He was required to evaluate the
    strength of the evidence against the appellant before advising him to enter a guilty
    plea, no matter how advantageous he thought that plea would be.

[75]

The shortcomings in the representation provided by trial counsel go to
    the heart of his responsibilities as counsel. They compel the conclusion that
    the appellant did not receive the effective assistance of counsel. The appellants
    guilty pleas to the remaining charges must also be struck.

CONCLUSION

[76]

In the interests of justice, all of the pleas must be set aside.

[77]

I would allow the appeal and order a new trial.

Released: December 18, 2019 (D.W.)

Grant Huscroft J.A.

I agree. David Watt J.A.

I agree. Gary Trotter J.A.