C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Trought, 2021 ONCA 379

DATE: 20210603

DOCKET:
C
64815

Feldman, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Trought

Appellant

R. Craig Bottomley and Andrea
    Vanderheyden, for the appellant

Lisa Csele, for the respondent

Heard: February 16, 2021 by video
    conference

On appeal from the conviction entered by
    Justice Robert F. Goldstein of the Superior Court of Justice on December 19,
    2016.

Trotter
    J.A.:

A.

Introduction

[1]

The appellant was convicted on a single count of
    possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of
    the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19. He appeals his conviction on two grounds. First,
    he submits that the trial judge erred in dismissing his application under s.
    11(b) of the
Canadian Charter of Rights and
    Freedoms
. Second, he contends that he received ineffective
    assistance from his trial counsel, particularly as it related to his decision
    to testify.

[2]

The following reasons explain why I would
    dismiss the appeal from the trial judges s. 11(b) ruling. However, I would
    allow the appeal because the appellant received ineffective legal assistance.

B.

Factual Overview

[3]

The case against the appellant was rooted in the
    fruits of a search of his apartment, where the police found a large amount of
    cocaine, along with assorted drug paraphernalia. The search was conducted
    pursuant to a warrant that was based on information supplied by a confidential
    informant. The appellant challenged the warrant under s. 8 of the
Charter
by attacking the information
    said to have come from the informant.

[4]

The confidential informant referred to two
    locations relevant to the narrative of events. The first is 165 Legion Road,
    Unit 1225 in Toronto. The police believed Unit 1225 was being used as a stash
    house for drugs and/or the proceeds of crime. Keeli Stith, a woman the
    appellant was seeing at the time, lived at 165 Legion Road, in Unit 434. The
    appellant went to her apartment on the evening of Sunday, July 28, 2013. An
    unrelated break-in occurred in the building in the early morning hours of July
    29th that resulted in considerable police presence. The police knocked on Ms. Stiths
    door at about 2:00 a.m. The appellant and Ms. Stith told the police that they
    heard a loud bang, but they were unable to provide any further information.

[5]

Shortly after the police visit, the appellant
    left the building and went home. The appellant lived at 80 Harrison Gardens
    Boulevard, Unit 520, which is roughly half an hour away. This is the second
    location to which the confidential informant referred. Later that day, at about
    4:00 p.m., the appellant returned to 165 Legion Road for a short visit with Ms.
    Stith. There was still a significant police presence.

[6]

The police arrested the appellant in the Ford
    Fusion on July 30, 2013. Armed with a search warrant, they searched the
    appellants apartment, where they found 2 ½ kilograms of powder cocaine, 7
    grams of crack cocaine, $440 in cash, a money counter, packaging paraphernalia,
    a debt list, as well as correspondence and identification bearing the
    appellants name.

[7]

The issuance of the search warrant was explained
    in the trial judges ruling dismissing the appellants s. 8
Charter
application (see
R. v. Trought
, 2016 ONSC 7919). The
    trial judge noted that the confidential informant reached out to the Toronto
    police on July 30, 2013, and provided the following information:

an unknown male was parked in the vicinity of 165 Legion Road;

the unknown male was described as Black, athletic, and slender;

the unknown male was driving a black Ford Fusion with Ontario
    licence DLJX 572;

the unknown male met with a white male;

the white male was described as 61, 150-160 lbs., with short brown
    hair;

the unknown male showed the white male a large quantity of cocaine
    in kilo bricks in the trunk of the Ford Fusion;

several police cruisers showed up while the unknown male was showing
    the white male the cocaine bricks;

the unknown male drove to the area of Harrison and Everson Drive in
    Toronto, where he had his stash house; and

the Ford Fusion was a rental vehicle that could not be traced back
    to the unknown male.

[8]

Trial counsel initially challenged the validity
    of the search warrant by alleging that the police fabricated the information
    said to have come from the confidential informant. He later backed off from
    that position, maintaining that, if the information did originate with the
    confidential informant, the part about the appellant showing bricks of cocaine
    from the trunk of the car was so ridiculous that it must be false.

[9]

The appellant testified on the
Charter voir dire

for the s. 8 challenge. In his evidence in chief, he claimed that he
    did not show anyone bricks of cocaine in the trunk of his car. In
    cross-examination, the appellant admitted to trafficking in cocaine. He
    acknowledged that half a kilogram of the cocaine seized from his apartment
    belonged to him; however, the rest belonged to a friend (who was also his
    supplier). The appellant allowed his friend to leave drugs in the apartment on
    the day of the seizure.

[10]

During a colloquy with the trial judge after the
    appellant testified, trial counsel agreed that the trial could proceed in a
    blended fashion (i.e., the appellants
voir dire
evidence would be applied to the trial proper if the
Charter
application failed). It did,
    and trial counsel invited the trial judge to find the appellant guilty. He did,
    and then sentenced the appellant to 5 ½ years imprisonment.

C.

Unreasonable Delay

[11]

The appellant submits that the trial judge erred
    in failing to find that his right to be tried within a reasonable time under s.
    11(b) of the
Charter

was infringed. It is not necessary to examine
    all of the steps taken in the proceedings in minute detail, because the
    appellant advances two focused arguments in support of this ground of appeal:
    (1) the trial judge erred in relying on the transitional exceptional
    circumstance; and (2) the trial judge erred in the manner in which he dealt
    with the asserted prejudice.

[12]

The appellant was charged on July 30, 2013. When
    he applied for a stay of proceedings under s. 11(b), his trial in the Superior
    Court of Justice was expected to finish by October 29, 2016  39 months from
    the date the appellant was charged.

[13]

Until the later stages of the trial proceedings,
    the parties were governed by the framework in
R. v.
    Morin
, [1992] 1 S.C.R. 771. However, the landscape
    shifted dramatically on July 8, 2016 when the Supreme Court of Canada released
    its judgment in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. Under the new regime, after
    deducting 5 months for defence delay, the remaining 34-month delay exceeded the
    applicable presumptive ceiling of 30 months.

[14]

The trial judge concluded that the transitional
    exceptional circumstance applied in this case. As he said, at para. 25 of his
    ruling: The parties reasonably relied on the law as it existed at the time.
    See also paras. 26-27 and the reference to
R. v.
    Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433, at
    para. 56.

[15]

The appellant contends that the trial judge did
    not explain why it was appropriate to apply the transitional exceptional
    circumstance. He submits the Crown had an onus to justify the application of the
    transitional exceptional circumstance, yet the trial judges reasons do not
    disclose how the Crown relied on the pre-
Jordan

jurisprudence. I disagree. It was
    apparent from the Crowns trial submissions that it relied on the law as it
    existed throughout most of the proceedings, until
Jordan
ushered in a new approach. In
R. v.
    Powell
, 2020 ONCA 743, 153 O.R. (3d) 455, at para.
    37, Nordheimer J.A. said: There was no reason  for the parities to believe that
    they would be judged by a different standard. The same conclusion may be drawn
    in this case.

[16]

The manner in which the parties proceeded in the
    pre-
Jordan
stages of
    the proceedings reflects an adherence to the dictates of
Morin
. Regrettably, it also reflects the
    impetus for change that inspired
Jordan
 both sides seemed content with a relaxed approach to the progress
    of the case. On the one hand, the Crown took too long to disclose a redacted
    version of the relatively straightforward Information to Obtain a search
    warrant (ITO); however, the trial judge accounted for this lapse by
    attributing three months of Crown delay. On the other hand, trial counsel
    adjourned the preliminary inquiry so that he could take a vacation, resulting
    in a five-month delay. Neither side distinguished itself in terms of
    efficiency.

[17]

Nevertheless, the case was close to (if not
    within) the
Morin
guidelines.
    The trial judge found that the institutional plus Crown delay in the Ontario
    Court of Justice was 11 months (set against a guideline of 8-10 months),
    whereas in the Superior Court the delay was 9 months (with a guideline of 6-8
    months). On appeal, the Crown submits that the trial judge made
    mathematical/rounding errors such that the institutional/Crown delay was properly
    17.5 months, just below the
Morin

guidelines. The appellant did not
    contradict this re-calculation during the hearing.

[18]

I need not resolve this issue definitively. The
    trial judge subsequently mentioned in his discussions with counsel that his s.
    11(b) determination involved a close call. I agree with his assessment.

[19]

The appellant also submits that the trial judge
    erred in the manner that he addressed asserted prejudice by the appellant. In
    an affidavit, the appellant claimed that, as a result of the delay in his
    proceedings, he developed high blood pressure, his income-earning opportunities
    decreased, and his inability to travel outside Canada resulted in him missing family
    functions and funerals. Lastly, he asserted that a long-term relationship with
    a woman (not Ms. Stith) experienced significant deterioration.

[20]

The appellant acknowledged that the Crown
    consented to some relatively minor variations of his bail. However, missing
    from the appellants affidavit is any indication that he sought other bail
    variations to ameliorate the hardships he sought to rely upon. He failed to
    back up his medical complaints with any supporting documentation typically seen
    in these circumstances. His affidavit was also light on detail, especially in
    relation to the impact of his inability to travel outside Canada.

[21]

In dismissing the s. 11(b) application, the
    trial judge said, at para. 40: Having reviewed Mr. Troughts affidavit, I am
    not satisfied that the prejudice he has suffered, while real, arose out of the
    delay rather than the fact of the charges. I agree with the appellants
    counsel that this aspect of the trial judges reasons is cursory. However,
    given the lack of initiative on the appellants part to address the bail
    restrictions he faced, I see no reason to disturb the trial judges finding.

[22]

I would dismiss this ground of appeal.

D.

Ineffective Assistance of Counsel

(1)

Introduction

[23]

The appellant submits that he received
    ineffective assistance from his trial counsel.
[1]
Although the appellants application was initially quite broad when filed, his
    factum and oral argument focused on the manner in which trial counsel conducted
    the s. 8
Charter
application. The appellant submits that trial counsels ineffectiveness is reflected
    in his agreement to a blended procedure without first obtaining instructions
    from the appellant.

[24]

The appellant claims that he was blindsided by
    this decision. He thought that his evidence would only be used on the
voir dire
. Relatedly, because he was
    unaware of the concept of constructive possession, the appellant did not
    realize that his testimony about allowing his friend to keep cocaine at his
    apartment was inculpatory. The appellant never intended to confess under oath
    to possessing all of the cocaine seized from his apartment. Had he been
    properly advised about the legal effect of his evidence, and had he known about
    the use to which it would ultimately be put, he would not have testified at
    all. He said that trial counsels ineffectiveness deprived him of his right to
    stay silent at trial, or at least the ability to make a meaningful and informed
    choice on this fundamental issue.

[25]

The respondent submits that the appellant was
    adequately represented. The case was always about the validity of the search
    warrant: if the
Charter

application failed, guilt would
    inevitably follow. The respondent points to an Agreed Statement of Facts that
    was filed at trial in which the fruits of the search are acknowledged. The
    appellant was involved in the preparation of this document, reflecting that he
    knew all along that he would be found guilty if he was unsuccessful in
    excluding the evidence. In short, the respondent submits that any missteps by trial
    counsel were inconsequential.

(2)

Proceedings at Trial

[26]

A good deal of the case against the appellant
    was based on preliminary inquiry transcripts that were filed on consent. In the
    lead up to the
Charter voir dire
, trial counsel advised the trial judge that the appellant would
    testify that he had nothing to do with what the confidential informant allege[d]
    and would give evidence admitting that the apartment was his, admitting that
    some of the drugs in that apartment were his. Trial counsel later said that
    the appellant would have some comment about what of those drugs were actually
    his drugs. The trial judge inquired: And thats in relation to the warrant.
    This is not the trial itself. Trial counsel said, Yes, on the application.

[27]

I pause here to observe that trial counsels
    approach to attacking the search warrant was somewhat unique. At the
    preliminary inquiry, he was unsuccessful on a motion to cross-examine the affiant
    of the ITO. He considered renewing the application at trial, but ultimately
    decided against doing so because he received further information from the
    Crown. Consequently, without challenging any police officer about the existence
    of the confidential informant, or the plausibility of the information supplied
    to the police, trial counsel put the appellant forward to imply that either the
    informant did not exist or the information they provided to the police was
    fabricated.

[28]

As noted above, Keeli Stith testified as a witness.
    She lived at 165 Legion Road, Unit 434 and testified about the appellants
    presence in her apartment during the evening of Sunday, July 28, 2013 and the
    police visit in the middle of the night in relation to the burglary in the
    building. The appellant left about 30 to 45 minutes after the police visit. The
    appellant returned to Ms. Stiths apartment around 4:00 or 5:00 p.m. that same
    day, July 29, to bring her food. Ms. Stith accompanied the appellant downstairs
    when he was leaving. There were many police cars parked out front. Ms. Stith
    suspected that there was an undercover officer in the lobby. After the
    appellant left, she returned to her apartment.

[29]

Ms. Stith knew nothing of the appellants
    involvement with drugs. She thought he was a stock trader.

[30]

The appellant testified that July 28, 2013 was
    the first time he went to 165 Legion Road. He denied showing anyone bricks of
    cocaine from the back of a car. In fact, he did not have cocaine on him when he
    went there. The appellant testified that, when he left the building in the
    early morning hours on July 29, there were as many as 10 police cars outside.
    The appellant said that he returned to the building later that day with food
    for Ms. Stith. There was still a massive police presence. The appellant
    stayed for half an hour and then left. Ms. Stith walked him outside. He went
    home. The next day, he was arrested in his vehicle on his way home from a community
    barbecue.

[31]

While the appellants examination-in-chief was
    focused on issues related to the search warrant, the appellant was
    cross-examined extensively on his activities as a drug dealer.

[32]

The appellant admitted that half a kilogram of
    the cocaine found in his apartment belonged to him. He allowed his friend/supplier
    to leave some cocaine in his apartment on the day that the search warrant was
    executed. His friend was to retrieve his portion of the cocaine later that day.
    The appellant admitted that the scales were his, as was the money counter. He
    acknowledged that there was over $100,000 worth of cocaine in his apartment.

[33]

The appellant testified that he did not traffic
    cocaine on a large scale. He estimated he sold drugs to four people a month. He
    had never purchased cocaine at the kilogram level. In relation to a notebook
    that the police said contained a drug debt list, which was found in close
    proximity to a large quantity of drugs, the appellant claimed that it was used
    to record gym promotions, another line of work he pursued, partner draws, and
    his stock trading information.

[34]

During their search, the police also discovered
    seven grams of crack cocaine. The appellant disavowed any prior knowledge of
    crack in his apartment. He surmised that his supplier gave him a sample of
    crack cocaine.

[35]

After the appellant testified, the trial judge
    addressed counsel to be clear about [what was] going on [that] morning. He
    observed that they were in the midst of a s. 8
Charter
    voir dire
, but he heard a lot of evidence that did
    not relate to the preconditions to the issuance of the search warrant. The
    trial judge said that he assumed it was meant to be a blended procedure. Trial
    counsel responded immediately:

The reality is that this is a blended
    hearing
. The reality is that all of the evidence,
    including my clients evidence and eyewitness, although strictly I said Id
    call him on the motion  Im content they be heard on the trial.
My clients,
    if you admit the evidence, would be sufficient to establish a guilt regardless
    of his admission, so his evidence doesnt hurt him on the trial at all.
This witness doesn't hurt him on the trial at all. So all of the evidence can
    apply to both the motion and the trial.
Its a true blended hearing.
[Emphasis added.]

[36]

There was further discussion and trial counsel agreed
    with the trial judge that, if the evidence were to be admitted, the appellants
    evidence could be considered in mitigation or aggravation of sentence.

[37]

After another police witness gave evidence and
    the parties made closing submissions, the proceedings were adjourned for
    approximately six weeks. When the trial resumed, the trial judge dismissed the
Charter
application. In his written
    reasons, the trial judge thoroughly rejected the appellants evidence. As he
    said at para. 40: I simply do not accept that Mr. Trought is a credible
    witness. Although a self-confessed drug dealer, he took pains to minimize his
    involvement in the business. He repeated his rejection of the appellants
    evidence at a number of junctures in his reasons
[2]
and made detailed findings in support of his conclusions.

[38]

After providing counsel with a written copy of
    his ruling, the trial judge asked about next steps. Trial counsel advised:
    Well, theres no other issue in the trial Your Honour, so the next steps is
    for you to make a finding of guilt.  All of the evidence applies. Its the
    only issue I was litigating. The trial judge made the finding of guilt and the
    case was adjourned for sentencing.

(3)

Fresh Evidence on Appeal

[39]

The appellant filed an affidavit in support of
    his claim of ineffective assistance of counsel. Trial counsel filed an
    affidavit in response. Both were cross-examined. The parties agreed that the
    affidavits and cross-examination transcripts were properly before us for the
    purpose of considering this issue: see
R. v. W.(W.)
(1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at pp. 232-33;
R. v. Joanisse
(1995), 102 C.C.C. (3d)
    35, at pp. 43-44; and
R. v. Chica
, 2016 ONCA 252, 348 O.A.C. 12, at para. 5.

[40]

The key issues are whether trial counsel
    properly advised the appellant about the implications of acknowledging that he
    allowed his friend to leave drugs in his apartment, and whether he trammeled on
    the appellants right to decide whether to testify without consulting him about
    the blended procedure. Typical of this type of application, trial counsel and
    the appellant are at odds as to what happened.

(4)

Analysis: The Appellant was Ineffectively Assisted
    by Counsel

[41]

I begin with a discussion of the governing
    principles and then consider the evidence.

(a)

Introduction

[42]

The framework for assessing claims of
    ineffective assistance of counsel is well-established. The appellant must
    establish: (1) the facts material to the claim of ineffective assistance on the
    balance of probabilities; (2) that the representation provided by counsel fell
    below the standard of reasonable professional assistance in the circumstances;
    and (3) the ineffective representation resulted in a miscarriage of justice:
R. v. G.D.B
.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27;
Joanisse
, at p. 59.

[43]

Elaborating on the third criterion, miscarriages
    of justice may take various forms. Some may impact on the outcome of the trial;
    others may disclose unfairness in the proceedings:
R.
    v. K.K.M
.
, 2020
    ONCA 736, at paras. 55, 91. As Major J. said in
G.D.B
.
, at para. 28: In some instances,
    counsels performance may have resulted in procedural unfairness. In others,
    the reliability of the trials result may have been compromised.

[44]

In
R. v. Stark
, 2017 ONCA 148, 347 C.C.C. (3d) 73, this court found that the
    appellants trial counsel made the election as to mode of trial without
    consulting his client, resulting in a finding of ineffective assistance of
    counsel. Lauwers J.A. said, at para. 20: 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. See also
K.K.M
.
, at para. 91. This court has
    recognized that public confidence in the administration of justice is just as
    shaken by the appearance, as by the fact of an unfair proceeding: see, for
    example,
R. v. Olusoga
,
    2019 ONCA 565, 377 C.C.C. (3d) 143, at para. 13; and
R. v. McDonald
, 2018 ONCA 369, 360
    C.C.C. (3d) 494, at para. 51.

[45]

The appellant acknowledged that he was aware
    that, if the s. 8
Charter
application failed, the case against him was formidable, if not
    worse. However, the appellants claim is based on the fundamental unfairness of
    being undermined by trial counsels combined failure to properly advise him
    about the implications of his anticipated testimony and to obtain proper
    instructions on the decision to have his testimony apply at trial.

(b)

The Decision to Testify

[46]

The appellants allegation of ineffective
    assistance engages consideration of the respective roles of defence counsel and
    the client in a criminal proceeding. Who is in charge of what? Modern criminal
    practice assigns the vast majority of decisions in a criminal trial to defence
    counsel. Counsel is expert in the law. They are required to assist the accused
    person in navigating the criminal trial process by providing sound legal
    advice. However, it is recognized that certain decisions belong to the client:
David
    Layton & Hon. Michel Proulx,
Ethics and Criminal Law
,
    2nd ed. (Toronto: Irwin Law, 2015), at p. 105.

[47]

In his famous article, The Role and
    Responsibility of the Defence Advocate (1969-1970), 12:4 Crim. L.Q. 376, at
    pp. 386-87, G. Arthur Martin (later, the Honourable G. Arthur Martin, of this
    court) identified the following decisions that are the clients to make: (1)
    how to plead; (2) whether to waive the right to a jury trial (where that option
    is available); and (3) whether to testify.

[48]

This list has been modified over the years. For
    instance, item (2) in Justice Martins article now encompasses the choice
    between a judge alone trial in the Ontario Court of Justice and the Superior
    Court:
Stark
, at para.
    18. In
R. v. Szostak
,
    2012 ONCA 503, 111 O.R. (3d) 241, at paras. 77-80, this court held that it is
    the clients decision whether to advance the defence of not criminally
    responsible on account of mental disorder under s. 16 of the
Criminal Code
; counsel cannot advance
    this defence without instructions.

[49]

Because the right to make these decisions
    belongs to the client, counsel cannot make them alone. As Lauwers J.A. said in
Stark
, the question is whether 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: at para. 16, citing
R. v. Swain
, [1991] 1 S.C.R. 933, at p. 972.

[50]

With respect to these fundamental decisions,
    ones that belong to the client, all the lawyer can do is provide advice and act
    on proper instructions. But that advice must be competent. As Doherty J.A. said
    in
K.K.M
.
, at para. 91:

An accused is denied his right to choose
    whether to testify when counsel actually makes the decision,
or when counsel
    provides no advice or advice that is so wanting, as to preclude the accused
    from making a meaningful decision about testifying.
In those situations,
    counsels ineffective representation denies the accused the right to make a
    fundamentally important decision about the conduct of his defence.
That
    denial goes to the appearance of the fairness of the trial, if not the actual
    fairness of the trial
. Either results in a miscarriage of justice,
    regardless of the impact of the ineffective representation on the reliability
    of the verdict. [Emphasis added.]

[51]

The quality of advice on the decision to testify
    was at issue in
R. v. Faudar
, 2021 ONCA 226. Faudar was charged with firearms offences that were
    discovered through the execution of a search warrant. He testified that,
    unbeknownst to him, his friend left a handgun and ammunition in his music
    studio. Faudar moved the items to his locked bedroom, where they were
    discovered days later when the police executed the search warrant. His innocent
    possession defence was rejected, and he was found guilty.

[52]

On appeal, Faudar alleged that he received
    ineffective assistance from his trial counsel  his lawyer insisted that he
    testify, even though he did not want to. As in this case, appellate counsel
    submitted that trial counsel essentially set his client up for certain failure
    by having him admit, under oath, the legal elements of possession. In response,
    it was the Crowns position that Faudar chose to testify, but it had no impact
    on the verdict in any event  because Faudars s. 8
Charter

application
    was unsuccessful, the evidence that was admitted overwhelming established his
    guilt.

[53]

This court dismissed the appeal. Writing for the
    court, Tulloch J.A. endorsed the holdings in
Stark
and
K.K.M
.
concerning the right of the accused to
    make fundamental trial choices and the lawyers corresponding obligation to
    offer sage advice in this regard: at para. 80. He concluded that Faudars
    decision to testify was informed and voluntary, at para. 82: Defence counsel
    detailed the significant risk of conviction on the basis of constructive
    possession in a reporting letter provided to the appellant prior to trial.
    Moreover, Tulloch J.A. observed that there was ample evidence pointing to
    constructive possession, even without Faudars testimony: at para. 88. Nevertheless,
    he held that there was some faint hope of success in Faudars innocent
    possession assertion that justified the decision to elicit his evidence.

[54]

Lastly, combined with other allegations of
    incompetence, Tulloch J.A. determined that, even if defence counsel had made
    some missteps, Faudar failed to establish that counsels performance undermined
    the integrity or reliability of the verdicts, or that it rendered the trial
    unfair: at para. 109.

[55]

With these principles in mind, I turn to assess
    the evidence proffered by the appellant and counsel.

(c)

The Appellants Affidavit and Cross-Examination

[56]

In his affidavit, the appellant acknowledged
    discussing with trial counsel the possibility of testifying. As he said:

In one of our meetings, [trial counsel] and I
    discussed the possibility of me testifying. My understanding was that if I were
    to testify on the section 8 motion, my evidence would not be part of the
    substantive trial. It was [trial counsels] idea that I not testify on the
    trial, only the motion. It was also [trial counsel] who told me that my
    testimony on the motion could not be used at the trial.

[Trial counsel] knew that if I were to testify
    under oath I would have to admit that a portion of the cocaine found by the
    police belonged to me. The bulk of it belonged to a friend of mine. [Trial
    counsel] did not explain the concept of constructive possession.

[57]

The appellant stated that trial counsel advised
    the trial judge that the procedure would be a blended procedure after the s. 8
Charter
motion was dismissed. In fact,
    this occurred after the appellant testified, but before the trial judges
    ruling. The important point is that the appellant swore that trial counsel did
    not confer with him before agreeing to the blended procedure, saying: [I]t was
    in direct contradiction to how [trial counsel] had told me my evidence could be
    used. Had I known that my evidence would be admissible at my trial, I would not
    have testified.

[58]

In his cross-examination, the appellant
    testified that he had never previously been arrested or charged with a criminal
    offence. He said, [T]his charge is the first Ive ever been through the
    process. Nevertheless, he knew that if the evidence was admitted, the case
    against him was overwhelming.

[59]

The appellant testified that he was not aware of
    what a blended trial meant. When he eventually learned that his evidence
    would be used on the trial, he did not raise the issue with trial counsel. As
    he said:

No, I did not raise that concern with my
    counsel. And at the end of the day, what I was told, my evidence would not be
    used against me. I wouldnt have gone up there and confessed. I -- thats what
    I was told. It would not be used against me. He gave me multiple examples of
    people going up there and saying they did this and then it cannot be used in
    the trial. And I also asked him, Well, if a judge hears it, how is he going to
    unhear it? Kind of, if you know understand what I mean. He goes, Well --

(d)

Trial Counsels Affidavit and Cross-Examination

[60]

The essence of trial counsels affidavit is that
    he was in frequent communication with the appellant about the conduct of his
    trial. As he said, [the appellant] was fully engaged in each and every
    decision both up to and including the trial. He emphasized that the defence of
    the case was always focused on attempting to exclude the evidence seized
    pursuant to the search warrant. Trial counsel said: It was all or nothing, win
    or lose. If the drugs were excluded we win, if the drugs were admitted we lose.

[61]

Trial counsel characterized as nonsense the
    appellants assertion that he first heard about the blended procedure when it
    happened. As he explained: He was fully aware of my tactics and that it would
    be a blended trial and that this approach was specifically designed to be
    effective with the learned trial judge and maximize our chances of success. If
    he had not testified the chances of success were zero. However, trial counsel
    could not pinpoint precisely when he advised the appellant about a blended
    procedure.

[62]

I wish to comment on an unfortunate passage in trial
    counsels affidavit. In his introductory paragraphs, he indicated that he had
    known the appellant for a couple of decades and had been introduced to friends
    and associates of his who were also engaged in the sale of cocaine and other
    illicit drugs. Trial counsel then said: It has always been abundantly clear
    to me that Mr. Trought was a career drug dealer although he also engaged in
    other lawful employment from time to time to earn an income and pay taxes, his
    primary vocation was the sale of drugs.

[63]

This assertion is at odds with the appellants
    trial evidence, and his evidence on the fresh evidence application. The
    appellant does not have a criminal record; in fact, before this case, he had
    never been charged with a criminal offence.

[64]

I appreciate that a claim of ineffectiveness is
    unpleasant for the lawyer who is the target of such an allegation. However, such
    gratuitous comments about a former client are unhelpful and unnecessary to
    respond to the allegations of ineffectiveness.

[65]

The cross-examination of trial counsel revealed
    shortcomings in his response to the allegations of ineffectiveness. When
    questioned by the respondent, trial counsel claimed that he received
    instructions on the decision to testify. Asked whether he got written
    instructions, he said: Absolutely not. I, perhaps, am flawed in this regard. I
    do not get written instructions from my clients. Trial counsel spoke of rare
    occasions when he might get written instructions and said, But I wouldnt say
    that 10 times out of a 47-year career have I received written instructions on
    an issue like that.

[66]

When trial counsel was asked whether he advised
    the appellant about a blended trial, he said, Well, I dont know if I ever used
    the term blended trial to [the appellant]. I made it clear that he would give
    evidence on the
voir dire
and that I would have the -- that the -- suggest that the evidence
    apply to the trial itself. He was unable to specify when this discussion
    occurred.

[67]

The cross-examination of trial counsel revealed confusion
    as to when the decision was made to go with a blended procedure. Trial counsel acknowledged
    that he did not mention it to the trial judge at the outset of the motion, or
    when the appellant testified. Yet, he maintained that the appellant always knew
    that his only hope of success was to exclude the evidence of the drugs,
    otherwise [they] were toast on the trial. The appellants counsel referred trial
    counsel to the exchange with the trial judge referred to in para. 35 above and
    suggested that this was the point in time when the decision was made. Trial
    counsel gave the following answer:

Thats the way it looks, in reading. I dont
    have a perfect memory of what was going on in my mind.
The judge caught me
    by surprise when he raised that. I thought it was a valid thing for him to
    raise.
I thought it was in [the appellants] interest that if we lost the
    motion, that the other evidence that [the appellant] had given was beneficial
    to him in things like sentence. [Emphasis added.]

(e)

Factual Findings on the Evidence of Ineffective Assistance

[68]

Comparing the competing accounts by the
    appellant and trial counsel against the backdrop of the trial transcript, I am
    able to reach the following conclusions:

·

the appellant and trial counsel had many
    discussions over the 39 months it took to bring this case to trial, yet trial
    counsel could not pinpoint when he discussed the blended procedure with the
    appellant;

·

the appellant understood that if he was
    unsuccessful on his s. 8
Charter
motion, he would be found guilty;

·

although an Agreed Statement of Facts was filed
    at trial, the appellants understanding of this document and any participation
    he may have had in its production, remained a question mark. Moreover, neither
    in his affidavit nor during cross-examination did trial counsel rely on the
    creation of this document to justify having the appellant admit his guilt under
    oath;

·

the excerpt from the trial transcript (at paras.
    26 and 35, above) and trial counsels cross-examination (at para. 67, above)
    strongly suggest that the first time he turned his mind to the possibility of a
    blended procedure was mid-trial, when the trial judge raised the issue. It is also
    clear from the record that, after the trial judge raised the issue, trial
    counsel did not consult with the appellant before answering the trial judges
    question and agreeing to a blended procedure; and

·

trial counsel did not explain, nor did the appellant
    understand, the concept of constructive possession as it related to all of the
    drugs found at his apartment.

(f)

Conclusions on Ineffective Assistance

[69]

I am satisfied that the appellant did not
    receive proper legal advice about his right to decide whether to testify, nor
    did he authorize the expanded use of his testimony. These failings resulted in
    an appearance of injustice that requires appellate intervention.

[70]

To begin with, the appellant was not made aware
    of the concept of constructive possession. He took to the witness stand and testified
    that about a fifth of the drugs seized belonged to him; the rest belonged
    to his friend. The trial judge rejected this factual assertion as untrue. But
    it did not matter who
owned
the drugs in these circumstances  as a result of the appellants
    admitted control over his apartment, and his knowledge that his friends drugs
    were being stored there, he would have been guilty by virtue of constructive
    possession: see
Criminal Code
, R.S.C. 1985, c. C-46, s. 4(3);
R. v.
    Morelli
, 2010 SCC 8, [2008] 1 S.C.R. 253, at para.
    17.

[71]

In light of this shortcoming in advice, the
    appellants decision to testify was not an informed one. To repeat the words of
    Doherty J.A. in
K.K.M
.
, at para. 91: An accused is denied
    his right to choose whether to testify when counsel actually makes the
    decision, or when counsel provides no advice or advice that is so wanting, as
    to preclude the accused from making a meaningful decision about testifying.

[72]

This misstep was compounded by trial counsels
    decision to convert the proceeding into a blended procedure, whereby the
    appellants sweeping (and unwitting) admission of guilt lost the protective
    shield of the
voir dire
. It was incumbent on trial counsel to discuss the issue with the
    appellant and to obtain instructions:
G.D.B
.
, at para. 34. Through a lack of proper
    professional advice, coupled with a failure to consult and obtain instructions,
    the appellant chose to testify on the
voir dire
, not knowing that his evidence would become the functional
    equivalent of a guilty plea, or a sworn confession, as his counsel
    characterized it on appeal.

[73]

I wish to be clear that the trial judges
    inquiry about a blended procedure was proper and timely. The cross-examination
    of the appellant had taken the
voir dire
in a different direction, having little to do with the warrant, and
    mostly focused on the appellants drug dealing activities. But this was
    predictable. In the circumstances, trial counsel ought to have paused, both for
    the purposes of consulting with the appellant, and to review the appellants just-completed
    testimony with him before making the critical decision to have it apply to the
    trial proper. By any measure, the appellants cross-examination went terribly.
    This is confirmed by the trial judges numerous and adverse credibility
    findings (see para. 37, above).

[74]

The appellants trial became unfair because he received
    inadequate legal advice. I accept that the case against him was considerable.
    Once the drugs were admitted, a conviction was inevitable. But the appellant
    was still entitled to competent advice in negotiating the criminal trial
    process. As noted above, although he is an intelligent man, this was the first
    time he had been charged with an offence. He needed to understand the legal
    implications of his version of events, whereby he effectively confessed to
    possessing over $100,000 worth of cocaine. He did so believing that his own
    evidence could not be used against him when it came time to determine his
    ultimate guilt or innocence.

[75]

The case was serious and the evidence was
    strong. Nevertheless, to let this result stand in light of what happened at trial
    would gut the right to effective assistance at a criminal trial, which is seen
    as a principle of fundamental justice: see
G.D.B
.
, at paras. 24-25;
Joanisse
, at p. 57.

[76]

In concluding this ground of appeal, I wish to
    comment on trial counsels failure to obtain written instructions from the
    appellant about the decision to testify. In
R. v.
    W.E.B
.
, 2012 ONCA
    776, 366 D.L.R. (4th) 690, affd 2014 SCC 2, [2014] 1 S.C.R. 34, this court
    recognized that the failure to obtain written instructions is a question of
    professional prudence, not incompetence, but noted that the failure to do so is
    ill-advised and contrary to counsels best interests: at para. 10. See also
R. v. Shofman
, 2015 ONSC 6876, 90
    M.V.R. (6th) 257, at para. 48.

[77]

The lawyer who fails to obtain written
    instructions risks exposure to unfounded allegations of unprofessionalism: see
    Christine Mainville, Professionally Serving and Managing Clients: Defence
    Counsels Role in the Solicitor-Client Relationship,
For the Defence
, 39:3 (13 February 2019),
    at p. 9. And although not indicative of ineffectiveness itself, the failure to
    obtain instructions may undercut trial counsels attempts to defend against
    claims of ineffectiveness.

[78]

The failure to obtain written instructions also
    makes it more difficult for an appellate court to adjudicate claims such as the
    one advanced on this appeal: see
R. v. Hamzehali
, 2017 BCCA 290, 350 C.C.C. (3d) 71, at para. 76, leave to appeal
    refused, [2017] S.C.C.A. No. 380, and
R. v. Wells
(2001), 2001 CanLII 24130 (Ont. C.A.), at para. 61. Written
    instructions may resolve competing claims on appeal. In
R. v. Archer
(2006), 202 C.C.C. (3d) 60
    (Ont. C.A.), Doherty J.A. observed, at para. 143, The largest hurdle faced by
    the appellant in trying to convince the court that the decision to testify was
    made by trial counsel is the direction signed by the appellant during the
    trial. Similarly, in
Faudar
, at para. 82, Tulloch J.A. referred to a reporting letter sent by
    trial counsel about the perils of constructive possession. The same approach
    would also have been helpful in this case, avoiding the necessity of dueling
    affidavits and cross-examinations.

E.

Disposition

[79]

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

Released: June
    3, 2021 KF

Gary Trotter J.A.

I agree. K. Feldman J.A.

I agree. P. Lauwers J.A.

[1]

Neither Mr. Bottomley nor Ms.
Vanderheyden.

[2]

For example, he said: I do not accept Mr. Troughts
    explanation for renting a car through an intermediary (para. 41); I do not
    believe him in relation to only 500 grams of cocaine belonging to him (para.
    42); Mr. Troughts innocent explanation that the notebook referred to gym
    promotions is simply not worthy of belief (para. 42); I found [his] evidence
    to be contrived in relation to meeting visitors in the lobby of his building
    (para. 43). He later referred to the appellants evidence as a whole as being
    highly suspect (para. 55).


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. Tyrell, 2021 ONCA 15

DATE: 20210111

DOCKET: C67939

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Levar Tyrell

Appellant

Matthew Gourlay, for the appellant

Benita Wassenaar, for the respondent

Heard: December 8, 2020 by
    videoconference

On appeal from
    the conviction entered by Justice David L. Corbett of the Superior Court of
    Justice on March 6, 2018, and from the sentence imposed on April 25, 2018.

Juriansz J.A.:

[1]

The appellant appeals his convictions by a judge
    sitting alone on charges of attempted murder and assault of a police officer
    with intent to resist arrest.
For the reasons that
follow,
    I would allow the appeal from both convictions. The appellant also appeals his convictions
    for firearm offences arising out of the same incident as the attempted murder
    charge. As I explain below, I would dismiss the appeals from those convictions.

A.

the attempted murder charge

(1)

The relevant facts

[2]

Early in the morning of May 1, 2016, the victim was
    shot in the abdomen while at an after-hours club. A single bullet shattered his
    pelvis as it passed through his body. He was in a coma for 16 days, underwent
    several surgeries, and remained in the hospital for a month. A photo array was
    presented to the victim soon after he emerged from the coma and while still
    under medication. He picked the appellants photo but said he was not sure. He
    did not mention having seen a gun. When a second photo array was presented
some
days later the victim positively identified the
    appellant, said he had not seen a gun, but added the appellant
was known to carry
a gun.

[3]

At trial the
victim testified he was at the after-hours club in the early morning
    when he saw the beginnings of a physical altercation between two men. Acting as
    a good Samaritan he physically intervened by pushing one man aside. Then,
    while inquiring what was going on, he was shot. He testified that after being
    shot he saw the appellant holding a gun. The victim had seen the appellant a
    few times before and knew him by a nickname. Nothing negative had ever passed
    between them and he did not know of any reason the appellant might have to harm
    him.

[4]

A few weeks after the shooting the police spotted
    the appellants car while he was driving and boxed it into a parking space.
    When they approached his car, he tried to flee and collided with
one of the officers
. The police recovered a loaded
    handgun from the car that matched the spent bullet and casing found at the club
    after the shooting.

[5]

The appellant
testified
    at trial
. He acknowledged being at the after-hours club at the time of
    the shooting and standing in the room where the victim placed him at the time
    of the shooting. However, he denied being the shooter. He claimed that about a
    week after the shooting the owner of the club offered to sell him a gun at an
extremely
low price. He bought the gun intending to
    sell it for a sizable profit. It never occurred to him the gun might be hot.

[6]

The appellant testified he did not know the
    victim, did not recognize him from seeing him at the club before, and had no
    reason to hurt him.

(2)

The trial judges reasons for finding the
    appellant guilty of attempted murder

[7]

The trial judge found the appellants testimony utterly
    unbelievable and found it did not raise a reasonable doubt of his guilt.

[8]

The trial judge accepted the victims testimony
at trial
identifying the appellant and placing a gun
    in his hands. The trial judge said there was no reason to believe the victim
    was deliberately trying to set up the appellant to take the fall for the
    shooting. The victim had identified the appellant after regaining consciousness
    from a coma, and it would be a remarkable coincidence
that
he just
happened to point
the finger at
    the person
who was
found in possession of the
    gun
that had been
used. The victims testimony
    and the ballistics evidence were independent of each other, and both pointed to
    the appellants guilt.

[9]

The trial judge found additional support in the
    appellants conduct after the shooting. First, he had driven a friend to her
    place and then had spent the night there. The trial judge observed he had no
    good explanation for not going home. He accepted the Crowns submission that
    he did not go home because he was afraid that police would be looking for him
    and the first place they would look was his house. Second, after the
    appellants illegally parked car had been towed away during the night, the
    appellant did not retrieve his car himself but sent a friend. The trial judge did
    not believe he had another family obligation and accepted the Crown theory
    that [the appellant] knew he had hidden the gun in the car and he was afraid
    that he would be arrested if he went to pick up the car himself.

[10]

The trial judge rejected the defences argument
at trial
that the position of the victim, the
    apparent trajectory of the bullet, and the position of the bullet and shell
    casing after the shooting supported an inference that the shot came from a
    place in the room other than from where the appellant was standing. The trial
    judge found the bullet and shell casing may have been kicked as people fled the
    room and the argument was not supported by expert testimony.

[11]

The trial judge said the eyewitness identification
    of the shooter combined with the police locating the gun in the car trunk of
    the person whom the eyewitness had identified as the perpetrator made this an
    overwhelming crown case.

[12]

The trial judge instructed himself as to the specific
    intent required for attempted murder, saying:

Attempted murder is a specific intent offence.
    The crown must establish beyond a reasonable doubt that [the appellant]
    intended to kill [the victim]. Not just that he intended to shoot into a crowd
    of people or intended to fire the shot that ultimately hit [the victim]. The crown
    must establish beyond a reasonable doubt that [the appellant] had the specific
    intention to kill [the victim].

[13]

Though there was no evidence of the motive for
    the shooting, the trial judge observed that [t]he crown need not prove motive
    and intent may be inferred from the circumstances of the acts that took place.
    The trial judge then inferred the appellant had the specific intent to kill the
    victim, saying:

Here, I find [the appellant] intentionally
    fired his handgun across about 20 feet of distance, about 6 metres, striking [the
    victim] in the abdomen. There is no evidence of accident. There is no evidence
    of mistaken identity. There is no evidence that [the appellant] was aiming for
    someone else. In
all of
these circumstances I
    am prepared to infer that [the appellant] intended the natural and probable
    consequences of his act, given his relative proximity to [the victim] and the
    absence of any evidence
that
he intended
    something other than the natural consequences of shooting [the victim].
In my view, that is sufficient to make
out the
    specific intent requirements for attempted murder.

(3)

The appellants argument

[14]

The appellant stressed that the Crown had to
    prove not only that the appellant discharged the firearm, but that he
    discharged it with the specific intent to kill:
R. v. Boone
, 2019 ONCA
    652, 56 C.R. (7th) 432, at para. 51;
The Queen v. Ancio
, [1984] 1
    S.C.R. 225, at pp. 248-49. As the doctrine of transferred intent does not apply,
    the Crown had to prove the appellant intended to kill the person he shot:
R.
    v Gordon
, 2009 ONCA 170, 94 O.R. (3d) 1, at para. 69, leave to appeal
    refused, [2009] S.C.C.A. No. 177. The recklessness arm for intent to murder
    does not apply:
Ancio
, at pp. 250-51.

[15]

The appellant submits that while the trial judge
    accurately stated the legal standard for the intent required, he erred in how
    he applied that legal standard to the
facts of this
    case
.

[16]

The appellant does not
take
    issue with
the trial judges finding of fact that the appellant
    intentionally fired his handgun across about 20 feet of distance, about 6
    metres, striking [the victim] in the abdomen. Rather, he argues the finding of
    intent was with respect to his physical act of firing the handgun, not with
    respect to the consequence of striking the victim in the abdomen. The trial
    judges conclusion he had the specific intent to kill was an inference. The
    appellant accepts that where the evidence proves beyond a reasonable doubt the
    accused has committed a particular act, the common-sense inference may bridge
    the inferential gap allowing the trier of fact to make a finding of specific
    intent. As Cory J.A. (as he then was) observed in
R. v. Bains
,

[1985]
    O.J. No. 41 (C.A.), at para. 27, leave to appeal refused, [1985] S.C.C.A. No.
    158:

All firearms
are
    designed to kill
. A handgun is a
particularly
insidious
    and lethal weapon. It is easy to carry and conceal, yet at close range, it is
    every bit as deadly as a .50 calibre machine gun.
It
    follows that when
,
at close range
, a handgun is pointed at a
    vital portion of the body of the victim and fired, then
in the absence of
any explanation the only rational inference
    that can be drawn is that the gun was fired
with the
    intention of killing
the victim. [Emphasis added]

[17]

However, the appellant argues the application
    of the common-sense inference was manifestly inappropriate here. He proffers as
    an example an accused who, wildly brandishing a handgun, pulls the trigger and
happens to hit
the head of a bystander 100 yards
    away. While it could be said that the accused shot the victim in the head, one
    could not make a common-sense inference that the accused had the specific
    intent to kill the victim. The appellant submits that in the circumstances of this
    case the trial judge misapplied the common-sense inference that sane and sober people
    intend the natural and predictable consequences of their acts and reversed the
    burden of proof.

[18]

Here, there was no hint of a motive. Both men testified
    there was no animus between them. During argument the trial judge had
    recognized that the gap between the proven act of shooting and proof of the
    required intent was wide. He had observed I dont have any evidence of what [the
    appellants] intent was other than the fact that he fired at these men.So, I
    mean, I dont think thats enough to get me beyond a reasonable doubt that he
    intended to hit [the victim].

[19]

The appellant submits the trial judge erred by
    abandoning his initial instinct.

He resorted to
    the common-sense inference and found the inference should be drawn because the
    appellant
had not led any evidence of accident
or
    mistake. This resulted in the reversal of the burden of proof. The appellant
    submits the resort to the common-sense inference was unreasonable in
the circumstances of
this case.

(4)

The Crowns argument

[20]

The Crown
took the
    position
that the trial judge made a factual error in stating that the
    appellant fired his handgun from a distance of 20 feet. The Crown points out
    that the victim had testified the appellant was 10 feet away when the victim saw
    him holding the gun. No other witness had testified about the distance between the
    appellant and the victim. The Crown submits the distance of 20 feet in the trial
    judges reasons is without evidentiary support.

[21]

Had the trial judge considered the distance from
    which the appellant fired the handgun to be 10 feet from the victim, as the
    victim testified, the Crown submits, the common-sense inference that the
    appellant intended to kill the victim would have been very strong. The Crown
    submits that the common-sense inference is still available if the distance is considered
to be
20 feet but recognizes the inference would
    be less
compelling in that case
.

(5)

Discussion

[22]

I am not persuaded
that
there is no evidentiary support for the trial judges finding that the
    distance between the appellant and the victim was about 20 feet. The location
    of the appellant and the victim at the time of the shooting were each clearly
    marked on photographs in the record. The photographs
make
    clear that
they were each standing in diagonally opposite corners of the
    room. A police witness who had measured the room had testified it was 4.05
    metres wide and 6.87 metres long, or 13 ¼ feet wide and 22 ½ feet long. Therefore,
    the distance between the diagonally opposite corners would
necessarily
be appreciably greater than the 6.87
    metres or 22 ½ feet measured length of the room.

[23]

The better view is that the trial judge did not
    make a mistake but that he based his finding of the distance between the
    appellant and the victim on their positions in the room and the dimensions of
    the room. It is worth noting that in his reasons for sentence the trial judge said
    the distance between the appellant and the victim at the time of the shooting was
    six to seven metres. The trial judges finding was not clearly wrong,
    unsupported by the evidence, or otherwise unreasonable, and should not be interfered
    with:
R. v. Clark
, 2005 SCC 2, [2005] S.C.R. 6, at para. 9.

[24]

When the distance between the shooter and the
    victim is taken to be about 20 feet or six metres as found by the trial judge, I
    am satisfied the circumstances cannot support the inference beyond a reasonable
    doubt that the appellant had the specific intent to kill the victim.

[25]

The trial judge had accepted the evidence of the
    appellant
that
he had no reason to hurt the
    victim. This was corroborated by the evidence of the victim. The victim offered
    an account of having intervened in an altercation between two men, neither of
    whom bore any known connection to the appellant. The appellant had fired a
    handgun from a distance of about 20 feet across a dimly lit, crowded room
in the direction of
the victim with the men
who were
involved in an altercation standing near
    him. As the trial judge had commented during argument, there was no evidence of
    what the shooters intent was other than that he had fired at these men. The
    trial judge noted there was no evidence of accident or mistaken identity. He
    might have noted there was no evidence that the victim was the intended target.
    That the shooter might have intended to shoot a different person, perhaps
one of the men
involved in the altercation, is not
    an irrational or fanciful conjecture. The trial judge should have considered this
    reasonable possibility:
R. v. Villaroman
,
2016 SCC 33, [2016] 1
    S.C.R. 1000, at para. 37.

[26]

I would allow the appeal of the conviction for
    attempted murder.

(6)

Other issues

[27]

It is unnecessary to deal with the appellants
    other
arguments in detail
. First, the
    appellant argues that the trial judges assessment of his post-incident conduct
    was based on misapprehensions of the evidence and these affected his assessment
    of the appellants credibility. Second, the appellant argues that the trial
    judge erred in summarily dismissing his application to admit video statements
    from two witnesses
who were
at the club but
    did not witness the shooting. The appellant submits the admission of this
    evidence would have undermined the victims credibility.

[28]

I am not persuaded the post-incident conduct was
    of much
, if any,
importance in undermining the
    appellants credibility. Before referring to post-incident conduct the trial
    judge had
already
found the coincidence of the
    victim identifying the appellant and the appellants possession of the gun was
    way too remarkable for [him] to be able to accept [the appellants] story. The
    trial judge
made no mention of
the post-incident
    conduct in describing this as an overwhelming crown case.
As well
, the trial judge used the appellants post-incident
    conduct as additional evidence to support his finding that the appellant was
    the shooter, a finding
that was
not attacked in
    the argument on appeal.

[29]

Nor am I persuaded that the video statements,
    had they been admitted, would have had any material effect on the trial judges
    assessment of the victims credibility. That the statements should have been
    admitted was pressed far more vigorously on appeal than it seems to have
been at trial
.

[30]

These two grounds of appeal,
    which apply to all the appellants convictions arising from the shooting
    incident, fail. Neither of these grounds has any bearing on
the appellants conviction for assaulting a police officer with
    intent to resist lawful arrest.

B.

the Assault Police charge

(1)

The trial judges reasons for finding the
    appellant guilty of assaulting a police officer with intent to resist lawful
    arrest

[31]

Count 11 of the indictment charged the appellant
    with assaulting a police officer with intent to resist lawful arrest contrary
    to s. 270(1)(b) of the
Criminal Code
.

[32]

The trial judge summarized the evidence of how
    the police arrested the appellant. They spotted his car when he was driving and
    boxed it into a parking space. As the police approached the car, they ordered the
    appellant to stay inside the vehicle and told him there was an arrest warrant
    for him. The appellant disobeyed their direction and attempted to run away,
    colliding with
one of the officers
. The
    appellant testified he was seeking to avoid contact with the officer as he was trying
    to get away.

[33]

The trial judge accepted the appellants
    motivation and intention was to escape from the police and found him guilty of
    assaulting police with intent to resist arrest contrary to s. 270(1)(b) of the
Criminal
    Code
. Speaking of the appellants collision with the officer, the trial
    judge said:

This is a natural consequence of the attempt
    by [the appellant] to resist arrest, this physical contact between the
two of them
, and is a natural consequence of his
    intent to run headlong as fast as he could to
try to
get
    around the officer.
In my view, in
those
    circumstances, the physical contact that took place
was
    a result of
reckless disregard as to whether there would be physical
    contact between the two
of them
and his
    conduct for which [the appellant] is liable under this charge to a finding of
    guilt.
There was not a specific intent to assault
. There was an intent
    to run headlong towards an officer whose duty and obvious intention was to stop
    [the appellant]
in order
to effect a lawful
    arrest. [Emphasis added.]

(2)

The appellants position

[34]

The appellant submits he was found guilty of
    this charge
on the basis of
recklessness. He
    points out that the offence of assaulting police with intent to resist arrest in
    s. 270(1)(b) of the
Criminal Code
combines the basic intent to assault
    with the additional intent to resist a lawful arrest. He quoted this passage from
    Morris Manning and Peter Sankoff,
Manning, Mewett & Sankoff  Criminal
    Law
, 5th ed. (Toronto: LexisNexis Canada, 2015), at p. 975: applications
    of force that are careless or negligent do not constitute assault, and the fact
    that an injury resulted from the force does not alter the need for the
    offenders intention to be proven beyond a reasonable doubt.

[35]

The appellant also relied on the decision
of this court
in
R. v. Palombi
, 2007 ONCA
    486, 225 O.A.C. 264, at para 35, stating: [t]here is, of course, also a
mens
    rea
or fault element for the simple (common) assault offence. The force
    must have been applied intentionally.

[36]

The appellant submits that while the trial
    judge found
that
he intended to resist arrest,
    the trial judge also
expressly
found he lacked
    the specific intent to assault the officer. Given these findings, the trial
    judge erred by convicting him on this charge.

(3)

The Crowns argument

[37]

The Crown accepted the appellants exposition of
    the law and reviewed the testimony of the two police
officers
    in detail
. The appellant had dipped his shoulder, buckled up like a
    hockey or football player, and had charged at the officer. The Crown pointed out
    that the appellant, himself, had said he tried to run through the officer. This
    evidence, the
Crown submitted
,
made clear
beyond a reasonable doubt that the
    appellant had the intention to assault  not just an intention to resist
    arrest.

(4)

Discussion

[38]

I agree with the Crown that the testimony of the
    officers and of the appellant himself could well support a finding that the
    appellant intentionally collided with the officer while attempting to get away.
    However, the trial judge accepted the appellants testimony that he tried to
    avoid contact with the officer. He convicted the appellant
on the basis of
his reckless disregard as to
    whether he would
make contact with
the officer.
    The trial judges express finding that the appellant did not have the specific
    intent to assault is a finding of fact. Given this finding of fact, the
    conviction on this charge cannot stand and must be set aside. As the trial
    judges finding
is determinative of
this
    charge on its merits, an acquittal must be entered.

C.

Conclusion

[39]

I would allow the appeals from conviction, and
    set aside the appellants convictions for attempted murder and assaulting a
    police officer with intent to resist lawful arrest and enter acquittals on those
    charges. I would dismiss the appeals from the other convictions appealed from.

[40]

Count 2 of the indictment charged the appellant
    with committing an aggravated assault on the victim contrary to s. 268(2) of
    the
Criminal Code
, R.S.C. 1985, c. C-46. At the conclusion of
    sentencing, the trial judge conditionally stayed this count
pursuant to
Kienapple v. The Queen
, [1975]
    1 S.C.R. 729 as the appellant was convicted of attempted murder on count 1. At
    the end of oral argument, the appellant acknowledged that, if his conviction on
    count 1 were to be set aside, the proper result would be a conviction for
    aggravated assault. Proceeding in accordance with the Supreme Courts decision
    in
R. v. Provo
,
[1989] 2 S.C.R. 3, at p. 22, I would remit the
    matter to the trial judge to register a conviction on the aggravated assault
    charge and sentence the appellant for that offence.

[41]

I would set aside the conditional stay on the
    aggravated assault charge and remit the matter back to the trial judge to enter
    a conviction and sentence the appellant on that charge. In light of this
    disposition I would dismiss the appellants request for leave to appeal the
    sentence as moot.

Released: January 11, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Jamal J.A.

I agree. S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ukwuaba, 2021 ONCA 152

DATE: 20210310

DOCKET: C65917

Feldman, Paciocco and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Ifejuna Ukwuaba

Appellant

Jessica Zita, for the appellant

Brian G. Puddington, for the respondent

Heard: March 8, 2021 by video
    conference

On appeal from the convictions entered
    by Justice Casey Hill of the Superior Court of Justice on May 11, 2015, with
    reasons reported at 2015 ONSC 2953, [2015] O.J. No. 2349, and from the sentence
    imposed on February 17, 2016, with reasons reported at 2016 ONSC 3109, [2016]
    O.J. No. 2817.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, Peter Ukwuaba, was convicted
    after a trial by judge alone of three offences involving approximately one kilogram
    of heroin: (1) possession of heroin for the purpose of trafficking, contrary to
    s. 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19
    (
CDSA
); (2) importing heroin, contrary to s. 6(1) of the
CDSA
;
    and (3) conspiracy to import heroin, contrary to s. 465(1)(c) of the
Criminal
    Code of Canada
, R.S.C. 1985, c. C-46. He was sentenced to 11 years
    imprisonment, concurrent on each charge.

[2]

Mr. Ukwuabas appeal counsel conceded,
    appropriately, that evidence showing he possessed the heroin for the purpose of
    trafficking was overwhelming. Accordingly, the conviction contrary to
CDSA
s. 5(2) is not being appealed. The appellant does, however, appeal the
    remaining two convictions and he seeks leave to appeal his sentences.

[3]

We notified counsel at the end of the oral
    hearing that, for reasons to follow, the conviction appeals are dismissed, but
    that leave to appeal the sentences is granted and the sentence appeal is
    allowed. The sentences of 11 years incarceration concurrent on each conviction
    are set aside, and concurrent sentences of 9 years incarceration are ordered.
    These are our reasons.

ANALYSIS

Appeals from conviction

[4]

Mr. Ukwuaba rested
    his conviction appeals on the absence of evidence linking him to the
    importation of the heroin until July 15, 2011, the day after the heroin left
    India by courier secreted in a box of automobile parts. On July 15, 2011, Mr.
    Ukwuaba received a text message containing the tracking number for the package and,
    on July 25, 2011, he received delivery of the package. He argues that, in the
    absence of any evidence of his participation in discussions leading to an agreement
    to export the heroin from India, the conspiracy conviction is unreasonable. He
    also submits that the fact that he took delivery of the couriered package upon
    its arrival cannot support a finding beyond a reasonable doubt that he was
    complicit in the importation.

[5]

We do not agree
    with either submission. It is evident that a package of valuable contraband
    would be sent to a trusted recipient. This couriered package of valuable
    contraband was addressed to a former resident of a rooming house. There was
    evidence that Mr. Ukwuaba was aware that the former resident no longer lived
    there. There was also evidence that Mr. Ukwuaba had formerly lived there
    himself and continued to receive mail deliveries at that residence, so he was
    aware that he could easily gain entry to receive a couriered package.

[6]

It is also
    evident that Mr. Ukwuaba was aware of the time when the couriered package would
    be delivered. He arrived at the subject residence shortly before the delivery,
    after having received a phone call from the same number used to text him the
    tracking number. Upon his arrival, he was observed conducting counter-
    surveillance of the residence before taking delivery of the couriered package.
    He was apprehended shortly after attempting to destroy the packaging
    information showing the origin of the box containing the heroin.

[7]

In these
    circumstances, it was appropriate for the trial judge to infer that Mr. Ukwuaba
    was the trusted recipient and that he would necessarily have agreed to perform
    that role prior to the decision to send the heroin by courier to his former
    residence. It was entirely reasonable, in the circumstances, for the trial
    judge to infer that Mr. Ukwuaba would have provided the details required to
    give effect to the importation plan before the courier shipment was arranged.

[8]

Accordingly, his
    convictions of importing heroin and conspiracy to import heroin were not
    unreasonable.

Appeal from
    sentence

[9]

In support of
    his request for leave to appeal the 11-year concurrent sentences of
    imprisonment imposed on each of the three charges for which he was convicted,
    Mr. Ukwuaba urges that the trial judge failed to consider the principle of
    restraint or the mitigating circumstances that he was a first offender and the
    principal caregiver to his autistic son.

[10]

We do not
    accept this submission. The trial judge recognized in his sentencing decision
    that Mr. Ukwuaba was a first offender, and he imposed a sentence that reflects
    the principle of restraint. It was open to the trial judge to conclude that the
    sentence he imposed was necessary to satisfy the operative sentencing
    principles.

[11]

However, fresh
    evidence introduced on appeal shows that circumstances have changed materially since
    Mr. Ukwuaba was sentenced in February 2016. In May 2017, he suffered a
    debilitating stroke that left him largely immobile and with serious impairment of
    his ability to communicate. Given his poor health, the circumstances of Mr.
    Ukwuabas incarceration are no doubt harsher than anticipated at the time of
    his sentencing, and the needs for specific deterrence and incapacitation have
    lessened. When Mr. Ukwuaba was initially sentenced, the Crown sought a sentence
    of 9 to 12 years incarceration. We are persuaded by Ms. Zita, Mr. Ukwuabas
    appeal counsel, that it is in the interests of justice to set aside the 11-year
    concurrent sentences imposed, and to substitute concurrent sentences of 9 years
    incarceration.

DISPOSITION

[12]

The conviction
    appeals are therefore dismissed. We grant leave to appeal the sentence, set
    aside the sentences imposed, and substitute sentences of 9 years imprisonment,
    to be served concurrently on each of the three convictions. All other terms of
    the sentence remain.

K. Feldman J.A.

David M. Paciocco J.A.

S. Coroza J.A.


WARNING

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

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

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

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

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

(b) on application of
    the victim or the prosecutor, make the order.

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

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. V.E., 2021 ONCA 254

DATE: 20210422

DOCKET: C67695

Fairburn A.C.J.O., Doherty and
    Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

V.E.

Appellant

Cassandra Richards, for the appellant

Gregory Furmaniuk, for the respondent

Heard: April 14, 2021 by video conference

On appeal from a conviction on a charge
    of sexual assault entered by Justice Marc DAmours of the Ontario Court of
    Justice, dated April 1, 2019.

REASONS FOR DECISION

[1]

The appellant appeals his conviction on a charge of sexual assault.
[1]
At the end of counsels submissions, the court dismissed the appeal with
    reasons to follow. These are those reasons.

[2]

It is not necessary to go into the details of the evidence. This was
    essentially a two-witness case. The complainant testified she did not consent
    to sexual intercourse. The appellant testified the complainant consented and only
    told him to stop after he had ejaculated. The outcome at trial turned on the
    trial judges assessment of the credibility of the appellant and the
    complainant, and the proper application of the burden of proof to those
    credibility assessments.

[3]

The trial judges reasons demonstrate he appreciated the
    issues, the position of the parties, the centrality of his credibility assessments,
    and the importance of the burden of proof. He structured his reasons to a large
    degree to track the submissions of trial counsel. He also specifically directed
    himself on the three-step approach set down in
R. v. W. (D.)
, [1991] 1 S.C.R. 742.

[4]

The trial judge began
    with a consideration of the appellants evidence. After a thorough review of
    that evidence, the trial judge said, at p. 13:

Given all these contradictions, the testimony of the defendant
    cannot be believed. His testimony does not raise a reasonable doubt.

[5]

Having completed steps one and two of
R. v. W.D.
, the trial
    judge moved to the third step which, on the evidence adduced in this case, turned
    entirely on his assessment of the credibility of the complainant. Once again, the
    trial judge thoroughly reviewed the evidence. He ultimately determined the
    complainant was credible and the Crown had proved its case beyond a reasonable
    doubt.

[6]

On appeal, the appellant argues the reasons are so deficient as to constitute
    an error in law. In her oral submissions, counsel advanced three arguments in
    support of this submission. She claims the trial judge:

·

summarized, but did not analyze the evidence and failed to make
    necessary findings of fact;

·

failed to address the argument that the complainant had a motive
    to fabricate her allegation; and

·

made a finding that the appellant admitted wrongdoing in a text
    message when that finding could not be justified on the totality of the
    relevant evidence.

[7]

As the appellant acknowledges, the trial judge did thoroughly review the
    evidence. The reasons did not, however, stop there. The trial judge provided
    cogent, detailed reasons for rejecting the appellants evidence and concluding
    it could not raise a reasonable doubt. Those reasons are supported by the
    evidence.

[8]

The trial judge also explained why he accepted the complainants
    evidence, albeit in a somewhat less detailed manner. In the course of reviewing
    the complainants evidence, the trial judge referred to and explained why he
    rejected various arguments that had been advanced on behalf of the appellant,
    challenging the complainants credibility.

[9]

In the circumstances, it was not necessary for the trial judge to make discrete
    findings of fact in relation to matters other than whether the sexual conduct
    was consensual. The trial judges credibility findings, which are adequately
    explained in his reasons, lead inevitably to a finding the complainant did not
    consent to sexual intercourse. On reading these reasons, there is no doubt why
    the trial judge convicted the appellant.

[10]

The
    second submission arises out of the trial judges failure to deal with the
    defence argument that the complainant had a motive to fabricate an allegation
    of sexual assault against the appellant. The trial judge did not deal with this
    argument in his reasons. Given the credibility findings, however, it is
    implicit that the trial judge rejected the argument that the complainant
    decided to fabricate a false allegation of sexual assault to get the appellant
    out of her home.

[11]

A
    trial judge is not required to address each and every argument in the reasons
    for judgment. On the evidence adduced in this case, the argument the
    complainant fabricated the allegation of sexual assault to get the appellant
    out of her home, made little sense. She testified she called the police because
    she was physically afraid of the appellant and wanted him out of her home. When
    she called, she made no allegation of sexual assault and, on her evidence, did
    not intend to make any such allegation. The complainant first referenced the
    sexual assault when questioned by the police after they had arrived. The
    evidence concerning the manner in which the allegation of sexual assault was
    made to the police is not consistent with the complainant having formulated a
    plan to call the police and falsely accuse the appellant of sexual assault.

[12]

In
    the course of her able submissions in this court, counsel suggested a variation
    on the argument put forward at trial. She suggested the complainant may have
    formulated the false allegation after the police arrived to buttress her
    request that the police remove the appellant from the home. This suggestion was
    not put to the complainant and does not appear to have been part of the defence
    theory at trial. It is not surprising the trial judge did not advert to this
    possibility in his reasons.

[13]

The
    final point deals with the trial judges treatment of a text exchange between
    the appellant and the complainant, during which the appellant appears to
    acknowledge prior wrongs done to the complainant. The appellant argues the
    trial judge took this as an admission by the appellant in respect of the sexual
    assault charge. He argues not even the complainant put that interpretation on
    the appellants text message.

[14]

We
    do not read the trial judges reasons as making a finding of an admission with
    respect to the specific events giving rise to this charge. Rather, he took the
    appellants words as an admission of having treated the complainant in an
    abusive manner. That admission was relevant both to whether the sexual
    intercourse was consensual, and the appellants credibility.

[15]

In summary,
    the trial judges reasons adequately served their intended purposes. They
    explained why the trial judge reached the verdict he did, and they sufficiently
    exposed the trial judges reasoning to effective appellate review.

[16]

The
    appeal is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

L. Sossin J.A.

[1]

The appellant pleaded guilty to other charges and was
    acquitted on still other charges. None of those charges are before this court.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Van Ravenswaay, 2021 ONCA
    393

DATE: 20210604

DOCKET: C66787

Tulloch, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wim Van Ravenswaay

Appellant

Daniel Ciarabellini, for the appellant

Michael Malleson, for the respondent

Heard: May 14, 2021 by video
    conference

On appeal from the order of Justice David
    L. Edwards of the Superior Court of Justice dated September 12, 2018, with
    reasons at 2018 ONSC 5348.

REASONS
    FOR DECISION

[1]

The appellant appeals from the dismissal by
    Edwards J. (the application judge) of the appellants certiorari application
    to quash the order of Colvin J. (the appeal judge).

[2]

At the conclusion of the hearing of this appeal,
    we advised the parties that the appeal was dismissed with reasons to follow.
    These are those reasons.

[3]

At the commencement of the appellants appeal
    from his April 26, 2017 conviction under s. 186(1) of the
Environmental
    Protection Act
, R.S.O. 1990, c. E.19, and from his 45-day sentence imposed
    by Justice of the Peace K. Boon, the appeal judge refused to allow the
    appellants agent, Gary McHale, to represent him, and he refused to adjourn the
    appeal to allow the appellant to obtain other representation. The appeal was
    not completed, and a portion of the argument was adjourned. In the interim, the
    appellant applied for certiorari of the appeal judges decisions disqualifying Mr.
    McHale and refusing the appellants adjournment request. The application judge
    dismissed the appellants application for certiorari but, with the respondents
    support, permitted the appeal to be restarted in its entirety before the appeal
    judge.

[4]

The appellant submits that the application judge
    erred by dismissing the certiorari application because he failed to recognize
    and rectify the substantial wrongs or miscarriages of justice that the
    appellant argues were occasioned by the appeal judges disqualification of the
    appellants agent of choice and by his refusal to adjourn the appeal.

[5]

We are not persuaded by these submissions. We see
    no error justifying appellate interference.

[6]

We do not accept that the application judge and
    the appeal judge applied the wrong test. The application judge correctly framed
    his review of the appeal judges reasons for disallowing Mr. McHale to act as
    the appellants agent by reference to the governing principles articulated by this
    court in
R. v. Romanowicz
(1999), 178 D.L.R. (4th) 466 (Ont. C.A.), as
    interpreted and applied in
R. v. Allahyar
, 2017 ONCA 345, 348 C.C.C.
    (3d) 206.

[7]

Romanowicz
involved the competence of unlicensed paralegals to represent accused persons in
    summary conviction matters and was decided prior to the licensing of paralegals
    by the Law Society of Ontario. The court reiterated an accuseds constitutional
    rights to a fair trial and to competent representation by legally trained
    counsel, and recognized that accused persons have the right to choose their
    mode of representation as part of their constitutional right to control their
    own defence, namely, whether to be represented by a lawyer, an agent, or to
    represent themselves.

[8]

However, the court did not conclude that accused
    persons have a constitutional right to representation by the non-lawyer of
    their choice. On the contrary, the court highlighted a courts authority, by
    statute or pursuant to its inherent power to control its own processes, to bar
    any person from appearing as an agent who is not a barrister and solicitor if
    the court finds that the person is not competent to properly represent or advise
    the person for whom he or she appears as agent, does not understand and comply
    with the duties and responsibilities of an agent, or if competent, on whom the
    court cannot rely for their integrity, honesty, or forthrightness or ability
    to conduct a trial ethically and honourably:
Romanowicz
, at para. 74.

[9]

Indeed, the court in
Romanowicz
described
    a courts power to deny audience to an agent whose participation in proceedings
    would either damage the fairness of those proceedings, impair the ability of
    the tribunal to perform its function or otherwise undermine the integrity of
    the process, as part of the courts obligation to protect the integrity of
    the proceedings, including the accuseds right to a fair trial and the
    accuseds right, within the limits of the law, to choose a representative: at
    paras. 61 and 64.

[10]

This court in
Allahyar
concluded, at
    para. 28, that the principles articulated in
Romanowicz
are of
    broader application and apply in the context of the representation of accused
    persons by unlicensed representatives in provincial offences matters. Citing
R.
    v. Cunningham
, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18-19, the
    court confirmed, at para. 11, that [t]he right of a representative to appear
    is subject to the courts authority to control its own process.

[11]

Also in
Allahyar
, this

court
    detailed the procedure set out in
Romanowicz
to be followed when a
    party attends with an unlicensed representative. This includes determining
    whether the party has made an informed choice to be represented by the agent,
    followed by an inquiry into the propriety of the representation. This fact-specific
    inquiry involves the kinds of concerns suggested in
Romanowicz
, namely
    questions of competence, discreditable conduct, conflict of interest and a
    demonstrated intention not to be bound by the rules and procedures governing
    criminal trials:
Allahyar
, at para. 17. The court confirmed that
    disqualification of an accuseds chosen representative is a serious matter and
    is justified only where it is necessary to protect the proper administration of
    justice.

[12]

Returning to the particular circumstances of
    this case, the application judge noted that the appeal judge properly followed
    the
Romanowicz
principles and procedure to assess the propriety of the
    appellants representation by Mr. McHale, a non-lawyer and non-paralegal. Specifically,
    the application judge observed that, following a detailed discussion of these
    issues with Mr. McHale and the respondent, the appeal judge concluded that
    Mr. McHale did not understand and properly comply with the duties and
    responsibilities of an agent. The application judge also agreed that Mr.
    McHales conduct prior to the trial was not one which would lead one to
    believe that either he understood or was complying with those duties and
    responsibilities. The application judge referenced the appeal judges example that
    as an admitted tactic, Mr. McHale and the appellant intentionally did not
    notify the court or the respondent that Mr. McHale would represent the
    appellant, knowing that the respondent would object because Mr. McHale had been
    disqualified from acting for the appellant in a previous, related proceeding.

[13]

Both the application and appeal judges viewed
    this conscious omission, correctly in our view, as a deliberate and improper attempt
    by the appellant and Mr. McHale to put the respondent at a disadvantage in a
    manner inconsistent with the obligations of litigants and their representatives
    to ensure the smooth operation of court proceedings so that precious court time
    is not wasted. Such deceitful misconduct is contrary to the proper
    administration of justice and undermines the purpose of the
Provincial
    Offences Act
, which is to provide a speedy, efficient and convenient
    method of dealing with [the] offences that it governs:
R. v. Sciascia
,
    2017 SCC 57, [2017] 2 S.C.R. 539, at para. 18, citing
R. v. Jamieson
(1981), 64 C.C.C. (2d) 576 (Ont. C.A.), at pp. 551-52. Whether or not Mr.
    McHale was simply following the appellants instructions in concealing his
    involvement, as the appellant argued he was, is a distinction without a
    difference. The fact is that he was knowingly engaged in misconduct that
    affected the due administration of justice. The appeal judges decision disqualifying
    Mr. McHale from acting for the appellant was therefore justified in these
    circumstances.

[14]

Finally, we agree with the application judges
    determination that the appeal judges refusal to grant an adjournment caused no
    substantial wrong or miscarriage of justice. As the application judge observed,
    it should have come as no surprise to the appellant that, having indicated on
    his court filings that he would represent himself, he would be required to
    proceed with the appeal if his stratagem to have Mr. McHale represent him
    failed. In any event, the appeal was adjourned and, noting the respondents support,
    the application judge stated that the appellant, either personally or with
    counsel or an agent who is not disqualified, could restart his appeal before
    the appeal judge. As such, there is no prejudice to the appellant and the
    adjournment issue has become moot.

[15]

Accordingly, the appeal is dismissed.

M. Tulloch
    J.A.

L.B.
    Roberts J.A.

Gary
    Trotter J.A.