2018 QCCA 1891, 2018 QCCA 1891

Benrouayene c. R. 2018 QCCA 1891 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-10-006284-168 (500-01-140769-164) (500-01-141461-167) PROCÈS-VERBAL D'AUDIENCE DATE : Le 8 novembre 2018 CORAM : LES HONORABLES JULIE DUTIL, J.C.A. PATRICK HEALY, J.C.A. SUZANNE GAGNÉ, J.C.A. APPELANT AVOCATE MOHAMMAD SOUHAI BENROUAYENE m e ALEXANDRA LONGUEVILLE (Raby, Dubé, LeBorgne, Avocats ) INTIMÉE AVOCATE SA MAJESTÉ LA REINE Me MARIE-ÈVE MAYER (Directeur des poursuites criminelles et pénales) Avocate en première instance AVOCATE Me JULIE TREMBLAY Me CLAUDE BAILLARGEON (Carette Desjardins, s.n.a.)

En appel d'un jugement rendu le 11 octobre 2016 par l'honorable Myriam Lachance de la Cour du Québec, district de Montréal. NATURE DE L'APPEL : Culpabilité – Introduction par effraction – Requête pour la présentation d’une nouvelle preuve déférée à la formation saisie du pourvoi. Greffière d’audience : Mai Nguyen Salle : Antonio-Lamer (RC-14) AUDITION 11 h 16 Début de l’audition.

Commentaires introductifs par la Cour. 11 h 17 Argumentation de Me Longueville. 11 h 22 Échanges entre la Cour et Me Longueville. 12 h 00 Argumentation de Me Mayer. 12 h 03 Échanges entre la Cour et Me Mayer. 12 h 15 Me Mayer soumet une autorité additionnelle. 12 h 20 Suspension de l’audition. 12 h 24 Reprise de l’audition. PAR LA COUR : Arrêt unanime prononcé séance tenante par l’honorable Julie Dutil, J.C. A. – voir page 3. 12 h 25 Fin de l’audition.

Mai Nguyen Greffière d’audience BY THE COURT : JUDGMENT [ 1 ] This is an appeal from a judgment of the Court of Quebec [1] in which the appellant was found guilty of breaking and entering with intent to commit an indictable offence within a dwelling. [2] The only ground of appeal is the alleged incompetence of trial counsel. [ 2 ] An appeal on this ground is unusual because an appellate court is required explicitly to make determinations of fact concerning the conduct of trial counsel. For this reason appeals of this nature are typically presented with a motion to adduce fresh evidence.

The appellant presented a motion to produce testimony by himself. The record includes an affidavit by the appellant and a transcript of cross- examination of the affiant. The record also includes a sworn statement by the appellant’s trial counsel and a transcript of cross- examination of the affiant. It is typical in appeals of this nature to allow the presentation of fresh evidence, [3] and in this case the Court grants the motion and admits the evidence.

[ 3 ] The principal question of fact in appeals of this nature is whether the appellant was deprived of the right to make full answer and defence in a fair trial as a result of the incompetent or ineffective assistance of counsel. If so, there was a miscarriage of justice. This type of appeal is a collateral attack on the result in first instance in the sense that no reproach is alleged against the conduct of the trial by the judge or the prosecutor.

Moreover, it is a collateral attack in the sense that the appeal has nothing intrinsically to do with the strength of the evidence or compliance with applicable principles of procedure and evidence. The appellant claims that the source and cause of the prejudice he suffered at trial was failure of his lawyer to represent him with a reasonable measure of competence. Context [ 4 ] Shortly after midnight on 9 July 2016, police responded to a call to 911 that reported a burglary in progress in a residential building. The outer door of the residence was broken and the inner door was unlocked.

The occupant of the residence was a friend of the appellant. The police found the appellant inside the residence and there were bleeding cuts on his hands. There was also blood smeared on the walls and furniture. He was arrested for breaking and entering the residence with the intention to commit therein an indictable offence. [ 5 ] The appellant’s sister is a lawyer and in her building she rented office space to other lawyers, including trial counsel in this case. On 5 August 2016 the appellant’s sister asked trial counsel to represent the appellant in the Court of Quebec.

She accepted this mandate even though she had no experience in the practice of criminal law. She received the material disclosed by the prosecution from the appellant’s mother on 20 September 2016. [ 6 ] Trial counsel claims that she prepared the file and consulted with the appellant’s sister in the development of a strategy for the trial. Trial counsel claims further that the appellant’s sister determined that she alone would meet with the appellant before the trial and that she would prepare him to testify in the event that such a decision was taken at trial.

Trial [ 7 ] At the time of the trial the appellant’s counsel had three years of experience as a lawyer but had never acted in a criminal case. On the day of the trial, 11 October 2016, trial counsel met the appellant and discussed the case with him for the first time. She spoke with him for ten or twenty minutes and heard his version of the facts. She explained the presumption of intention in

section 348 of the Criminal code . They agreed that counsel would decide, without further consultation with the appellant, whether to call him to testify. [ 8 ] The prosecution called four witnesses, two civilians and two police officers, and the appellant’s counsel put one question in cross-examination to one of the civilian witnesses. She called no evidence in defence and specifically did not call the appellant to testify in his own defence.

She pleaded that the prosecution had not proved its case beyond reasonable doubt, with respect to either the identification of the appellant or the break-and-enter. [ 9 ] The judge concluded that the prosecution had proved by circumstantial evidence that the accused broke and entered a dwelling and, with reference to blood smeared inside the premises, that he committed therein the indictable offence of mischief.

She noted that the evidence of the first three witnesses called by the prosecution presented weaknesses but the evidence as a whole, especially after the fourth witness, entirely excluded reasonable doubt. On this basis she concluded that the only reasonable conclusion was that the accused broke and entered the dwelling with the intent to commit an indictable offence. She thus found the accused guilty as charged under section 348(1) (

a) of the Criminal Code . [ 10 ] As noted, trial counsel was given the mandate to represent the appellant by his sister, who is also a member of the Bar. A strategy for the trial was prepared by counsel in consultation with the appellant’s sister. It appears that the sister consulted with the appellant before the trial and that he agreed with the strategy. The strategy was to assess the strength of the case at the close of the prosecution evidence and thereafter decide whether to call the appellant to testify.

At trial counsel for the appellant considered that the prosecution evidence was too weak to sustain a finding of guilt and decided, without further consultation with the appellant or his sister, not to call any evidence in defence. The defence that the appellant might have advanced was that he intended to sleep in the dwelling and had no intent to commit an indictable offence.

Counsel decided not to call the accused to testify in part because she considered that the prosecution case was weak and in part because she was suspicious that the appellant might have been coached in the formulation of his defence. [ 11 ] The appellant raises several points to support the conclusion that counsel was ineffective or incompetent in representing him.

Among the allegations against her are the following: Did not consult experienced criminal counsel in the preparation of the case; Had no contact with the appellant before the day of trial; Did not advise the appellant that she had no experience in the practice of criminal law; Provided scant legal advice on relevant issues; Did not discuss with the appellant his mental state or intoxication at the time of the alleged offence; Asked only one question of one prosecution witness in cross-examination; Called no defence and decided without the appellant’s informed consent, at the close of the prosecution case, not to call him to testify. [ 12 ] The appellant claims that the cumulative effect of these factors was that he did not have the opportunity to make full answer and defence with the effective assistance of counsel acting with a reasonable degree of skill.

This argument rests on several general

assumptions, which he seeks to reinforce with reference to recognised ethical obligations accepted in the legal profession. [4] First, counsel is unable to provide such assistance without adequate consultation and preparation with the client, not least because counsel is unable to give professional advice or take instructions from an informed client. Second, counsel must consult the client personally in this regard and cannot rely upon others, even a member of the Bar, to prepare the case that he or she must take to trial.

Third, counsel fails to provide effective assistance in the course of the trial if a diligent attempt is not made to rebut or weaken the prosecution case when the evidence calls for an answer. For these reasons the appellant claims that, far from full answer and defence, there was for all practical purposes no answer or defence. [ 13 ] In her sworn statement and in her cross-examination on that statement, trial counsel makes a variety of assertions concerning her involvement in this case. She says that the appellant’s sister explained that she could not represent him.

She says that she suggested to the sister that the family should retain criminal counsel and that she even suggested this to the appellant`s parents. She says that the sister insisted that she represent the appellant rather than one of the two criminal lawyers in the office. She accepted and first attempted to reach the appellant by telephone on 11 August 2016.

On 8 October she received a telephone message from the appellant in which he confirmed her mandate to represent him. [ 14 ] Trial counsel says that in her meeting with the appellant before the trial he asserted several times that he had no criminal intention when he entered the dwelling. She says that she told him that his sister had mentioned that he entered the dwelling with the intention to sleep but that she could not ask a question so suggestive. She says that she formed the view that the appellant`s testimony would likely have limited probative value.

Accordingly, she says, the appellant agreed with her proposal to hear the prosecution evidence before deciding to call the appellant to testify. She also says that at no time did the appellant express a wish to testify. [ 15 ] Counsel also asserts in the cross-examination on her statement that she attended a meeting with experienced criminal counsel after the trial and sentence to examine the possibility of an appeal. She says that in this meeting counsel advised that an appeal against the judge’s findings would not likely succeed.

She says that he also advised that the only plausible avenue of appeal would be to invoke counsel’s incompetence but that he personally would not undertake such an appeal. Principles [ 16 ] The importance of the right to effective assistance by trial counsel has been restated many times [5] but it does not include a right to a new trial to correct misjudgment or failed strategy. A claim of ineffective assistance of counsel is plainly a serious matter. It impugns the competence of the lawyer and can have lasting professional consequences.

The appellant must rebut a strong presumption of competence and prove on a balance of probabilities, without reliance on hindsight, that the acts and omissions of trial counsel were not within the range of reasonable skill and that as a result he suffered serious prejudice to his right to make full answer and defence in a fair trial. [6] The issue is not whether trial counsel met the highest standards of criminal practice, or whether trial counsel might have acted otherwise, but whether trial counsel acted with a reasonable degree of professional skill. [7] Discussion [ 17 ] It would seem clear in this matter that the appellant’s sister was closely involved, perhaps even the dominant figure, in the handling of his case.

To the extent of her involvement she must bear responsibility for the way in which the case proceeded and concluded at trial, especially because she was a principal architect in the preparation of the defence case. By itself, however, the sister’s involvement does not resolve the issue concerning the degree of effective (or ineffective) assistance provided by trial counsel.

More importantly, it remains the case that appellant cannot be forced to bear the consequences of ineffective assistance of trial counsel if that is actually what occurred. [ 18 ] Trial counsel’s inexperience in criminal law is not a ground on which to claim incompetence or ineffective assistance. [8] Her failure to cross-examine rigorously and her failure to call defence evidence, notably her failure to call the appellant to testify, might best be described as tactical misjudgment. By themselves these decisions also cannot be characterised as incompetence. Misjudgments of this kind are not uncommon.

In this instance, however, they must be considered with other factors: trial counsel did not meet with the appellant until the day of the trial, and even then only briefly; trial counsel suspected that the appellant’s explanation of his presence in the dwelling might have been coached in order to defeat the presumption of intention; trial counsel did not consult with him at the conclusion of the prosecution evidence and did not receive at that time specific instructions that the appellant would not testify; trial counsel did not call the appellant to testify when it was clearly the only reasonable option in defence. [ 19 ] The cumulative effect of these various factors, beginning most notably with the first, is that the appellant was deprived of the opportunity to make full answer and defence with the effective assistance of counsel and for this reason alone it cannot be said that the appellant had a fair trial.

In these circumstances the apparent strength of the prosecution evidence does not off-set this conclusion. In this respect it is helpful to recall the observation of the Supreme Court in G.D.B. : 34 Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice.

While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions.

The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice. [9] [ 20 ] As acknowledged in the hearing before this court, there is no basis on which to affirm that the result at trial would have been different if the appellant had been more effectively represented. In particular, it is mere speculation whether testimony by the appellant

could have raised a reasonable doubt whether he intended to commit an indictable offence in the dwelling. But this is not decisive. This is not a case of misjudgment in the course of effective representation; nor is it a case of regret over a failed strategy in the conduct of a trial. The appellant was not only represented ineffectively; trial counsel did not take charge of the file until she first met the appellant on the day of the trial and even then she met with him only for a few minutes. This is incompatible with any concept of effective representation.

For all practical purposes he was unrepresented and therefore did not have the benefit of full answer and defence in a fair trial. [10] As with the presumption of innocence, this protection is fundamental for any person who is in jeopardy of conviction and sentence in a criminal prosecution.

As Proulx J.A. said in Delisle , the function of this court is to ensure that the appellant had a fair trial. [11] If the result of ineffective assistance by trial counsel is an unfair trial of an accused person, this is sufficient to allow the appeal. [ 21 ] There is no suggestion that counsel for the appellant is an incompetent lawyer but it is clear, on a balance of probabilities, that her acts and omissions in this case deprived the appellant of the opportunity to make full answer and defence.

There is also no suggestion that the prosecution evidence in this case could not prove the offence charged to the necessary standard of proof. Where an accused person is deprived of the right to make full answer and defence with the effective assistance of counsel, the fairness of the trial is compromised and the only remedy is to restore that right and the opportunity to answer the charge in a new trial. CONCLUSION FOR THESE REASONS THE COURT: [ 22 ] GRANTS the motion to present fresh evidence; [ 23 ] ALLOWS the appeal; [ 24 ] ORDERS a new trial. JULIE DUTIL, J.C .A. PATRICK HEALY, J.C .A. SUZANNE GAGNÉ, J.C .A.