Decisions of the Court of Appeal

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(1), (2), or (3) of the Criminal Code shall continue.  These sections of the Criminal Code provide:

486.    (1)            Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2)            For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a)       the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b)       justice system participants who are involved in the proceedings are protected.

(3)            If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order.  R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

[1]              The appellant seeks leave to appeal his convictions for sexual assault, assault, forcible confinement and uttering threats against his common law partner.  He alleges that he received ineffective assistance from his counsel at trial and that a miscarriage of justice resulted from his counsel’s conduct of the case.

[2]              There are several prerequisites which must be met before a court will set aside a conviction on the basis of ineffective assistance of counsel.  First, the appellant must establish the facts underlying the allegation on a balance of probabilities.  Second, the appellant must establish that the acts or omissions amount to incompetence.  Third, the appellant must establish that the ineffectiveness resulted in a miscarriage of justice, by undermining either the appearance of a fair trial or the reliability of the verdict.  The court is to determine the last question first, as, if competent representation could not have altered the verdict, it is unnecessary to undertake the other parts of the analysis. See R. v. Archer (2005), 202 C.C.C. (3d) 60, paras.118-121 (Ont. C.A.); R. v. G.D.B. (2000), 143 C.C.C. (3d) 289, paras.23-29 (S.C.C.); R. v. White (1997), 114 C.C.C. (3d) 225, at pp. 245-247 (S.C.C.); R. v. Joanisse (1995), 102 C.C.C. (3d) 35, at pp.43-44, 56-58 (Ont. C.A.).  In our opinion those prerequisites have been met.

[3]              In this case, defence counsel failed to properly execute an effective cross-examination, including the abandonment of alternative routes to effective cross-examination in favour of a one-prong attack (See R. v. T.P., [2002] O.J. No.2142, paras.27-36 (Ont. C.A); R. v. Giroux, [2004] O.J. No.2054, paras.1-2 (Ont. C.A.); R. v. M.B., 2009 ONCA 524, paras.59-66 (Ont. C.A.).  Although credibility was the central issue in the case, she also failed to cross-examine the complainant on prior inconsistent statements that would have supported the defence position the complainant was fabricating the allegations, (M.B., supra, paras.59-66);

[4]              In her affidavit, trial counsel explained that her “primary strategy” was to demonstrate that the complainant’s evidence was inconsistent with her actions, with a focus on “her financial independence, her freedom of movement and her lack of fear of the [appellant].”  And in cross-examination she reiterated that her focus was on “these peripheral issues.”  In her brief closing submissions, however, trial counsel admitted she failed to make any submissions related to her primary strategy.  She said that this was a “slip” on her part.

[5]              What counsel did say in her closing argument was tantamount to an abandonment of any defence when she stated:

...the complainant in this matter, with respect to any of the elements of the offence[s] that are faced before the court, she was not shaken and certainly with respect to the sexual assault and those elements of the offence in the cross-examination.

[6]              The purpose of appellate inquiry is not to grade counsel’s performance.  The appellant has shown that the acts or omissions of his trial counsel could not have been the result of reasonable professional judgment.   The appellant was entitled to competent legal representation at his trial, because effective representation by counsel enhances the reliability of the outcome of the adversarial trial process.  In this case, the cumulative effect of the failures of counsel undermined the reliability of the verdict and resulted in a miscarriage of justice.  Further, the appearance of a fair trial was undermined by trial counsel’s failure to advocate for her client by pressing for the rejection of the complainant’s evidence.

[7]              Accordingly, the appeal is allowed, the conviction is quashed and a new trial is ordered.

“Karen M. Weiler J.A.”

“E.E. Gillese J.A.”

“H.S. LaForme J.A.”