R. v. Munson, 2012 MBCA 111

Citation: R. v. Munson, 2012 MBCA 111 Date: 20121203 Docket: AR 12-30-07879 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) J. C. Prober andHER MAJESTY THE QUEEN ) B. T. King ) for the Applicant Respondent ) ) A. Y. Kotler ) for the Respondent- and - ) ) ) Chambers motion heard:RONALD MICHAEL MUNSON ) November 15, 2012 ) (Accused) Applicant ) Decision pronounced: ) December 3, 2012 MICHEL A.

MONNIN J.A. 1 This is a motion seeking judicial interim release pending an appeal following convictions of forcible confinement,utter threat to cause bodily harm and using an imitation handgun while committing the forcible confinement offence. 2 Section 679(3) of the Criminal Code (the Code) provides that a person such as the accused may be released fromcustody pending the determination of his appeal if he establishes that: (

a) the appeal ... is not frivolous; (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. 3 In his notice of appeal the accused advances three grounds for his appeal: that the verdict was unreasonable; that thetrial judge erred in arriving at the credibility findings that she made; and that the convictions were unfair because of ineffectiverepresentation by trial counsel.

At the hearing of the motion the accused advanced a further ground that he was convicted of an offencethat does not exist, that is, the use of an imitation handgun as opposed to the use of an imitation firearm. 4 The crucial issue on this motion is whether the accused’s ground of appeal of ineffective representation is sufficient todischarge the onus that he must meet under s. 679(3)(

a) of the Code, namely that his appeal is not frivolous or that it has a reasonableprospect of success. Were it not for that ground, and even though the threshold to demonstrate the merit of an appeal is low, I wouldeasily come to the conclusion that the threshold has not been achieved in this case with respect to the other proposed grounds of appeal. 5 This court dealt with the requirements needed to satisfy an allegation of ineffective counsel in R. v. Le (T.D.), 2011MBCA 83, 270 Man.R. (2d) 82.

Scott C.J.M., writing for a unanimous court, stated (at paras. 177-78, 183, 189): An Appellate Court will therefore not blindly accept an appellant’s affidavit evidence regarding discussions with trial counsel in theabsence of any evidence from the trial counsel or any indication in the trial record that there was something amiss (Antoine v. R. (1984), (QC CA), 40 C.R. (3d) 375 (Que. C.A.), affd. (SCC), [1988] 1 S.C.R. 212; 84 N.R. 80; 12 Q.A.C.159). See too, R. v. E.J.B. (1992), (SK CA), 105 Sask.R. 15; (SK CA), 76 C.C.C. (3d) 530(C.A.).

In my opinion, it can now fairly be said that it is the responsibility of appeal counsel to make a proper inquiry of trial counseland, in the absence of an acceptable explanation, present evidence from trial counsel in an admissible form on an appeal allegingincompetent representation (R. v. Morris (C.I.) (1994), (BC CA), 53 B.C.A.C. 296; 87 W.A.C. 296 (C.A.)).

To conclude, the extensive case law summarized in this judgment establishes the following principles with respect to establishing thefactual foundation of an allegation of incompetent representation:

(1) It is an appellant who bears the onus of submitting evidence to establish the factual foundation underlying the allegation.

(2) Unless the trial transcript (unusually) reveals everything about the allegation, it is expected that appeal counsel will make inquiries oftrial counsel and apply to present evidence from trial counsel in response.

(3) Where the trial transcript and circumstances surrounding the allegation raise a concern about incompetent representation, courts aregenerally willing to order evidence to be taken from trial counsel prior to making a decision respecting the allegation.

(4) However, where the court is satisfied from the trial transcript and other circumstances that no valid concern has been raised, the courtwill generally determine at this preliminary stage that an appellant has failed to provide the necessary factual foundation.

(5) In more practical terms, just because an appellant has sworn to some facts in an affidavit does not automatically mean that a primafacie case has been raised requiring an answer from trial counsel. It all depends on the circumstances. On the other hand, even if the alleged incompetence could not have affected the fairness of the trial, it is still necessary to considerwhether the presumed incompetence affected the reliability of the verdict.

In this latter instance, the appellant must show there is a realprobability that the result of the proceedings would have been different but for the presumed incompetence; in other words, that therewas prejudice. As Doherty, J.A., stated in Joanisse [R. v. Joanisse (1995), (ON CA), 102 C.C.C. (3d) 35 (Ont.C.A.)] (at p. 64): ... [T]he appellant must show that, had he received competent legal representation, there is a real probability that the appellant would nothave been convicted of murder [the charge in that instance]. A reasonable probability lies somewhere between a mere possibility and alikelihood. ...

A reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, theverdict cannot be taken as a reliable assessment of the appellant’s culpability. To recap, before a court will find incompetency affecting the reliability of the verdict, certain prerequisites must be met. Theseprerequisites include a factual component (is there a factual foundation to the claim), a prejudice component (is there a miscarriage ofjustice) and a performance component (is there actual incompetence). As the Supreme Court of Canada said in G.D.B. [R. v.

G.D.B.,2000 SCC 22, [2000] 1 S.C.R. 520], at para. 29, there is no need to evaluate the performance component if the prejudice component hasnot been proven. In order to determine whether an appeal will be successful on this ground, the following analysis must be undertaken:

(1) The factual component: an appellant must establish, on a balance of probabilities, the facts on which the claim of incompetency isbased. If that is not established, there is no need to go any further.

(2) The prejudice component: if the factual foundation has been made out, the court will, for the purposes of this component, assumeincompetence on the part of counsel. See Joanisse, at p. 62, Doherty, J.A. At this stage, an appellant must establish, on a balance ofprobabilities, that the presumed incompetence resulted in a miscarriage of justice. If it did not, there is no need to go any further.

(3) The performance component: if it is determined that the reliability of the verdict was affected by the presumed incompetence, thecourt will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, the presumption revertsto “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” and the onus falls on anappellant to establish that it did not (G.D.B., at para. 27). Again, that analysis is conducted without the benefit of hindsight. [emphasis added] 6 Following the decision in Le, and in order to deal with allegations of ineffective counsel, the court prepared and

circulated a draft protocol to be followed in appeals where such a ground of appeal is raised. (A copy of the protocol is attached as Appendix A to these reasons.) The protocol has been circulated to both the Crown and defence bar for their consideration and although not yet adopted as a practice direction or a rule of court, both the Crown and counsel for the accused advised the court that they were aware of its content and voiced no objection to my considering it in coming to my decision in this matter. 7 I was informed that counsel who had conduct of the trial on behalf of the accused (trial counsel) had received a copy of the notice of appeal from the accused and that, shortly before this hearing, he was provided with a copy of the motion for judicial interim release through the offices of the Crown.

I was further informed that trial counsel was seeking counsel and might wish to intervene in this matter or provide evidence, although that might require a waiver of privilege on the part of the accused. 8 Counsel for the accused was queried on the advisability of hearing from trial counsel prior to proceeding with this motion at this time, but he took the position that there were sufficient incidents of ineffective representation existing on the record that I could, and should, grant the relief that the accused is seeking at this time.

More specifically, counsel argued that trial counsel should not have consented to amending the indictment at the beginning of the trial to include the offence of imitation handgun, that trial counsel failed to object to the introduction of evidence that was akin to similar fact evidence, that trial counsel failed to adequately cross-examine with respect to certain elements of the Crown’s case and that trial counsel failed to properly prepare and called a witness whose evidence the trial judge found favoured the Crown’s theory of the case.

It is to be noted however, that the accused’s affidavit in support of this motion only refers to the lack of preparation prior to testifying as indications of ineffective representation. 9 The Crown took the position that it is premature to decide whether the threshold for granting judicial interim release under s. 679(3) (

a) has been met without first hearing from trial counsel, or that there are sufficient, if any, incidents of ineffective representations on the record to meet the test of reasonable prospect of success. The Crown argued that the accused’s bare statement in an affidavit that he and another witness were improperly prepared to testify is not sufficient to discharge the onus that he must meet.

The Crown further argued that the incidents of ineffectiveness on the record to which the accused refers do not meet the criteria set out in paras. 178(4) and 189(3) of Le. 10 Although the threshold that an accused must meet to be placed on judicial interim release is low, I am not prepared to accept, nor have I been persuaded, that it is as low as counsel for the accused makes it out to be. Furthermore, one must remain mindful that in Le it is stated that there remains throughout a strong presumption of competence in favour of trial counsel (at para. 179).

Finally, I do not accept counsel’s submissions that the process referred to in Le or in the protocol only needs to be adhered to at the time of the hearing of the appeal on its merits and not at a preliminary stage, as in this motion. I disagree with that submission because, if accepted, it would mean that a convicted accused would simply have to make an allegation of ineffective representation and he would, all other things being equal, be entitled to judicial interim release pending his appeal.

The Le process, in my view, provides for an early determination of a factual foundation sufficient to meet the test to receive interim judicial release when a ground of appeal is that of ineffective counsel. 11 As a chambers judge considering an application for judicial interim release pending appeal, I must be satisfied that the grounds of appeal have a reasonable prospect of success. I find myself incapable of properly assessing whether the accused’s allegation of ineffective representation has a reasonable prospect of success on the strength of the accused’s affidavit and the submissions of his counsel alone.

It might take longer to perfect an application for judicial interim release pending appeal when an allegation of ineffective representation is being advanced, but I am satisfied that what this court said in Le applies from the initial filing of the notice of appeal, and not simply on the hearing of the appeal on its merits. 12 In this particular case, it would have been useful, if not to say essential, to have heard from trial counsel either by way of affidavit or viva voce so that I could properly and fully assess the factual foundation of the ground of appeal before granting the relief sought.

The accused, although prompted to proceed in that fashion, declined to do so. 13 I am not prepared to blindly accept the accused’s affidavit evidence that he was ill-prepared to testify.

Furthermore, I have not been persuaded that the accused has demonstrated on the record the necessary factual foundation to discharge the onus he must meet at this stage of the proceedings or that if such incidents of ineffective representation had been made out, their rectification would have brought about a different verdict. 14 In the result, I am not satisfied at this time, that the accused has demonstrated that his appeal has a reasonable prospect of success and accordingly, I dismiss his motion for judicial interim release. __________________________ J.A.

Appendix A Protocol for Appeal Proceedings Involving Allegations of Ineffective Counsel in First Instance

Preamble In criminal appeals from conviction and or sentence, the appellant may raise grounds of appeal suggesting that his or her counsel was ineffective or otherwise contributed to a miscarriage of justice in first instance. In such cases, the appellant will often want to provide the Court with information concerning instructions to and conduct of counsel. This information will typically come before the Court by way of a motion for leave to file fresh evidence. Any response to such evidence will usually come from counsel in first instance.

The response could consist of affidavits to be considered by the Court on the fresh evidence motion. If the appellant is represented by counsel it is expected they will undertake an assessment of the merits of the complaint against counsel prior to raising these issues in the Notice of Appeal. In most cases that assessment will include giving counsel notice of the allegations against him or her and providing a reasonable opportunity to respond. A useful discussion of the issues raised in appeals involving allegations of ineffective trial counsel can be found in the Supreme Court of Canada decision in R. v.

G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 . A useful discussion of the issues raised in appeals involving allegations of ineffective trial counsel can be found in the Court’s decision in R. v. Le (T.D.) , 2011 MBCA 83 , 270 Man.R. (2d) 82 . Protocol 1. All Notices of Appeal in criminal matters will be reviewed by the Registrar or Deputy Registrar. As part of this review, an attempt will be made to discern whether the grounds of appeal include allegations with respect to the conduct of counsel in first instance.

If Crown counsel becomes aware that an Appellant is raising such issues he or she will promptly notify the Registrar. 2. If the Registrar or Deputy Registrar determines the grounds of appeal include allegations with respect to the conduct of counsel in first instance, a letter enclosing a copy of the Notice of Appeal will be sent to that counsel. This letter will be copied to the parties to the appeal. In addition the Registrar or Deputy Registrar shall report the matter to the Chief Justice who may consider appointment of a judge to provide directions, on his or her own initiative or on motion. 3.

Counsel in first instance will be provided with copies of correspondence or documents filed with the Court with respect to any motion for directions. 4. Counsel for the appellant in first instance must advise the Court on the hearing of any motion for directions whether he or she intends to participate in the proceeding. In particular, counsel will advise the Court whether he or she intends to make any motion or file affidavit evidence. 5. Should the response by counsel involve disclosure of potentially privileged information, a motion for directions regarding waiver of privilege would be expected. 6.

In some circumstances, the nature of the allegations against counsel may result in his or her application for intervenor status on the appeal.