R v Rhodes (KHC), 2015 MBCA 100

Citation: R v Rhodes (KHC), 2015 MBCA 100 Date: 20151015 Docket: AR13-30-08081 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) J. A. Weinstein ) for the Appellant ) Respondent ) R. N. Malaviya - and - ) for the Respondent ) KENNETH HOWARD CECIL RHODES ) Appeal heard: ) September 1, 2015 (Accused) Appellant ) ) Judgment delivered: ) October 15, 2015 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see

section 486.4 of the Criminal Code ). On appeal from 2013 MBQB 166 , 295 ManR (2d) 29 ; and 2013 MBQB 251 , 297 ManR (2d) 247 BEARD JA I. THE ISSUE [ 1 ] The accused is appealing his conviction by judge alone trial in the Court of Queen’s Bench on July 3, 2013, (the second trial) on one count of sexual assault contrary to

section 271 of the Criminal Code on the ground that he received ineffective assistance of counsel in the course of his second trial. II. THE FACTS [ 2 ] The following is my

summary of the facts taken from the second trial judge’s decision. [ 3 ] Later in the evening of August 19, 2006, the complainant and her cousin, SM, went to a bar in Thompson, Manitoba, where they spent the balance of the evening drinking, dancing and socializing. They were standing outside after the bar closed where they encountered the accused and AL, whom they had never met before.

The four decided to drive to Ospwagan Lake (the lake), about 20 minutes from Thompson, for a party and, possibly, swimming. [ 4 ] On the way to the lake, they pulled off the highway at the Jonas Lake Road, although there were different explanations as to the reason for the stop. SM testified that she could not remember why they stopped. The accused said that they stopped to go to the bathroom. The complainant said that they stopped at her insistence, because the accused was bothering her and she wanted to get out.

She said that SM and the accused traded places so that the accused would no longer be in the back seat with her, following which she agreed to get back in and they continued on to the lake. [ 5 ] When they got to the lake, which was down a short access road, there was no party. The complainant testified that that made her uncomfortable, but there was no evidence to indicate that she said anything about that. The complainant initially remained in the car and the others got out. A short while later, she got out and went into the bush, ostensibly to go to the washroom. When she did

not come out of the bush after a period of time, the others began looking for her. SM and AL drove back to the highway, while theaccused remained at the lake. The complainant finally came out of the bush, and it was after this that the sexual encounter between herand the accused took place. [6] After the complainant came out of the bush, there was some kissing by the lake and then they walked back to thehighway. At the highway, they engaged in various sexual acts, beginning with digital penetration of the complainant’s vagina by theaccused.

She stated that he was hurting her, so he turned her around and they had vaginal intercourse. At some point, he penetrated heranus and she again indicated that he was hurting her. He then performed oral sex on her, before she ran off into the bush. [7] The complainant remained in the bush for some time, and the accused eventually picked up her jeans and boots andwalked to the highway, where he was picked up by SM and AL. They began looking for the complainant, returning to the lake and thendriving a short distance up and down the highway.

She eventually walked out to the highway to flag down a vehicle for a ride back toThompson. It happened that SM’s car came along and picked her up and then they returned to Thompson together. [8] The complainant was not wearing her jeans when she got back into the car and SM was upset, but the complainant saidthat nothing happened and that she had gone swimming. AL gave his wallet to the women as a show of good faith. When they returnedto Thompson, the two men were let out of the car. They located SM’s residence the next day, as AL was looking to get his wallet back.

There was a brief exchange as the two men took the wallet and left. [9] SM and the complainant were consistent as to the events after the two men got out of the car. As soon as they got out,the complainant told SM that she had been raped. SM shouted at the two men, and then the two women went to the Pizza Hut parkinglot, where the complainant told SM the details of what she said happened. They drove over to the RCMP detachment, but the office wasclosed. SM called the after-hours telephone number that was provided and reported that there had been a rape.

They then drove acrossthe street to the Canadian Tire parking lot. An officer came over to the vehicle and tried to speak to the complainant, but she refused totalk to him. [10] The two women went to SM’s residence, where the complainant had a shower and spent the rest of the night. The nextday, they were on their way out when the accused and AL came by to get AL’s wallet and, as noted above, there was a brief exchange. [11] Soon after, the complainant told her mother and other family members what had happened.

They convinced her to reportit to the police, which led to the charge against the accused. [12] The accused gave two statements to the police during the course of the investigation. The matter went to trial inSeptember 2010 (the first trial), and the accused was convicted. That conviction was overturned on appeal, and a new trial was ordered. That trial took place in April and May 2013 (the second trial), at which the accused had a new lawyer, leading to the accused’sconviction on July 3, 2013. That is the conviction that is the subject of this appeal. III.

THE LAW AND THE STANDARD OF REVIEW [13] The issue of ineffective assistance of counsel does not arise at trial; it is decided as a matter of first instance on appeal.

There being no review, the rules regarding standards of review to be applied to a decision from a lower tribunal are not engaged. [14] The parties are in agreement, as am I, that the law governing the question of the ineffective assistance of counsel wasrecently set out by this Court in a unanimous decision by Scott CJM in R v Le (TD), 2011 MBCA 83, 270 ManR (2d) 82 (at para 189): 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. [2000 SCC 22,[2000] 1 SCR 520] at para. 29, there is no need to evaluate the performance component if the prejudice component has not 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 [(1995) (ON CA), 85 OAC 186] at p. 62, Doherty J.A. At thisstage, an appellant must establish, on a balance of probabilities, that the presumed incompetence resulted in a miscarriage of justice. If itdid 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. [15] Scott CJM summarized the principles applicable to establishing the factual foundation, being the first step in the analysis,as follows (at para 178):

(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

of trial 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, thecourt will 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. [16] The second step of the analysis asks whether the factual foundation, as proven on a balance of probabilities, resulted in amiscarriage of justice. A miscarriage of justice will be demonstrated if the effect of the presumed incompetence was to either (

i) renderthe verdict unreliable or (ii) render the process unfair. Where there is a claim that the presumed incompetence affected the reliability ofthe verdict, the defence must show that there is a real probability that the results would have been different but for the presumedincompetence – i.e., that there was prejudice. If there was no prejudice, that ends the matter. (See Le at paras 180-184.) [17] Finally, the third step of the analysis arises only if there has been a miscarriage of justice.

In that event, the Court goes onto determine whether the actions of the trial counsel were, in fact, incompetent, as judged from the point of time when trial counsel madea particular decision or took a particular action. (See Le at paras 185-188.) [18] There is a strong presumption in favour of competence. (See R v GDB, 2000 SCC 22 at para 27, [2000] 1 SCR 520.) Therefore, the standard of review for assessing the representation provided by counsel is high, as has been emphasized in the followingstatements by Doherty JA in R v Joanisse (R) (1995), (ON CA), 85 OAC 186 (at paras 72, 74): . . .

The wisdom of hindsight has no place in this assessment. . . . Appellate courts must give deference to the choices made bycounsel and the competence assessment must be informed by a presumption in favour of competence. . . . The ultimate purpose of the appellate inquiry is not to grade counsel’s performance, but to determine whether a miscarriage ofjustice occurred. . . . (See also R v Aulakh (BS), 2012 BCCA 340 at paras 40-55, 326 BCAC 177.) IV.

POSITIONS OF THE PARTIES [19] The accused’s position is that his second trial counsel failed to adequately cross-examine the complainant and, to a lesserextent, SM to highlight significant areas of inconsistency between the testimony at the second trial and that at the first trial. In thatregard, he set out eight areas of inconsistency for which he argues that the cross-examination was either inadequate or non-existent. Heargues that, had there been a proper cross-examination, there is a real probability that he would not have been convicted.

Thus, he isarguing that there was a miscarriage of justice on the basis of an unreliable verdict. [20] The accused argues that credibility was crucial in this case and that the failure to cross-examine the complainanteffectively, or at all in some instances, left the inconsistencies and contradictions in her testimony undisclosed and untested. His positionis that this led the trial judge to have an inadequate picture of the reliability (or unreliability) of the complainant’s testimony and,therefore, her credibility.

Further, he argues that one should not look at each inconsistency on its own but should consider thecumulative effect of all of the inconsistencies when determining whether there was a miscarriage of justice. [21] The Crown’s position is that the second trial counsel did make use of the first trial transcript to cross-examine thecomplainant and to put the theory of the defence to her.

It argues that the mere assertion that trial counsel could have conducted the trialmore effectively does not meet the standard required to establish ineffective assistance of counsel, as the goal is not perfection, anddifferent lawyers would conduct the same trial differently. [22] It argues that, while it does not disagree with the principles or outcomes in the cases upon which the defence is relying,the facts in those cases and, in particular, the errors committed by counsel in those cases are significantly more serious than those allegedin this case, such that those cases do not assist in the resolution of this matter. [23] As regards the specific areas of inconsistency raised by the defence, the Crown is of the view that either there are noinconsistencies or they are so insubstantial that they do not call into question the reliability of the verdict.

V. ANALYSIS [24] The accused’s appellate counsel (who was not counsel at either trial) made numerous attempts to contact the accused’ssecond trial counsel to discuss the strategy during that trial and to determine whether there was any explanation for the manner of cross-examination, but the second trial counsel did not reply in any substantive way. Thus, the appeal proceeded without any input from thatcounsel. [25] The factual foundation for the claim of ineffective assistance of counsel is not at issue in this matter. The alleged

incompetence arises from the testimony given in the two trials which is set out in the two transcripts. Thus, the accused is relying on those transcripts to prove the factual foundation. [ 26 ] The accused is relying on eight examples of what he describes as “significant areas of inconsistency” between the complainant’s testimony at the first and second trials to support his argument that, had the second trial counsel highlighted these areas, there is a real probability that he would not have been convicted.

I would describe these areas as follows: (1) the stop at the Jonas Lake Road; (2) whether the accused stopped digitally penetrating the complainant when she told him that it hurt; (3) the strange account by the complainant of her hitting herself with a stick; (4) the events surrounding the anal penetration and whether it was an accident; (5) where the two women went after the two men left the car; (6) whether the complainant had difficulty with her memory; (7) the need to refresh the complainant’s memory during the first trial regarding the sequence of the sex acts; and, (8) the cause of the complainant’s injuries. [ 27 ] In my view, there was no inconsistency between the complainant’s testimony at the two trials related to areas (2), (4), (5), (6), (7) and (8).

It must be remembered that the complainant was often replying to questions that differed between the two trials, and each answer must be considered in the context of the question that was being asked. While the same words were not always used, the answers were reflective of the questions being asked and the complainant was consistent, between the two trials, as to the story or point being conveyed.

The complainant was specifically asked at both trials about her memory of the events in question, and, on both occasions, she acknowledged that she could not remember everything, but at the second trial she said that she could remember the important things. This is borne out by comparing her testimony at the two trials. [ 28 ] The first inconsistency relates to the reason for the stop at the Jonas Lake Road. At the first trial, SM agreed in cross- examination that no one changed places in the car, which contradicted the complainant’s evidence that SM moved from the front seat to the back seat.

At the second trial, SM testified that she could not remember why they stopped or what happened, and she was not cross- examined on her testimony at the first trial. Further, the inconsistency between SM’s testimony and that of the complainant was not put to the complainant at the second trial. [ 29 ] In my view, the inconsistency between the complainant and SM as to the reason for the stop was an insignificant detail that would not have affected the trial judge’s assessment of the complainant’s credibility.

The significance of the reason for the stop is that it supports the complainants’ testimony that she rebuffed the accused’s advances. While the accused denied the reason she gave for this stop, he did agree that he had attempted to put his arm around her before the stop and she rebuffed him by blocking his move and saying she had a boyfriend, which he understood to mean that she was rejecting his advances. Thus, any inconsistency in her evidence about the reason for the stop does not undermine her evidence that he was making advances of a physical and sexual nature and that she rejected those advances.

For this reason, the inconsistency as to the reason for the stop is, in and of itself, not significant. [ 30 ] It is relevant to note that, while the cross-examination of the complainant at the first trial was lengthier and more detailed than that at the second trial, the complainant was not cross-examined about this inconsistency at the first trial, either.

This supports the conclusion that, in the context of the entire trial, this was not a significant inconsistency. [ 31 ] The third area raised by the accused relates to the complainant’s testimony about hitting herself with a stick to knock herself out following the digital penetration. The accused argues that the second trial counsel should have confronted the complainant about this strange account of events given at the first trial. I would note, first, that the complainant was consistent as to her account of these events as between the two trials, so there was no inconsistency on which to cross-examine.

Second, a review of the transcript of the first trial shows that the defence counsel at that trial did not cross-examine the complainant about these events either. Thus, I can see no error in the second trial counsel not cross-examining the complainant as regards these events or as to her testimony at the first trial in relation thereto. [ 32 ] The seventh area raised by the accused relates to the fact that the Crown had to refresh the complainant’s memory about the sex acts by permitting her to read her police statement on three occasions during her direct examination in the first trial.

The accused argues that her inability to recall these details during the first trial should have been highlighted and should have been put to her. The trial judge was aware of the complainant’s difficulty in testifying as to the actual sex acts because she had the same problem at the second trial, and the Crown had to refresh her memory at the same juncture during the second trial by showing her the police statement.

Thus, I do not see how the failure to cross-examine the complainant on the need to have her memory refreshed would have affected the verdict. [ 33 ] The accused argues that all of these areas must be considered together to determine whether, cumulatively, they would have affected the trial judge’s assessment of the complainant’s credibility and, therefore, the verdict.

While I agree, in principle, with this proposition, in this case, I do not agree that, even if there had been cross-examination on all of these areas, it could have had that effect. [ 34 ] The second trial judge wrote a lengthy decision, reviewing in detail all of the evidence and very carefully explaining all of her findings. She was alive to the legal and factual issues and made no errors of law or fact. Further, the witnesses were consistent on many of the details of the events of that night. In particular, for the most part, the accused agreed with the complainant as to what occurred that night.

To the extent that he disagreed with her as to the

interpretation of those events, the second trial judge rejected his evidence, and she did so because of the many significant inconsistencies between the several versions of the events that he gave, being two police statements, his testimony at the first trial and at the second trial. The complainant’s evidence did not play into this at all. [ 35 ] The second trial judge found that, overall, the complainant was consistent in her evidence, and that conclusion is borne out by the transcripts.

In the context of all of the evidence, the areas for cross-examination raised by the accused, even considered together, are not significant and, in my view, could not have affected the verdict. [ 36 ] I have reviewed the cases provided by the defence in which the courts have found that there was ineffective assistance of counsel. I agree with the Crown that, in each of those cases, the errors found to constitute the ineffective assistance of counsel were much more serious and substantial than in this case. While they are consistent with the law as set out in Le , they do not support a finding

that the facts of this case lead to the conclusion that, even if incompetence is presumed, there was a probable miscarriage of justice basedon those facts. (See R v. P(T) (2002), (ON CA), 59 OR (3d) 577 (CA); R v MB, 2009 ONCA 524, 251 OAC 81; andR v JB, 2011 ONCA 404 (QL).) [37] Thus, I would find that, even if incompetence is presumed, the factual foundation does not support a finding that therewas a probable miscarriage of justice in this case, and, as result, it is not necessary to go on to consider whether the actions of defencecounsel at the second trial were incompetent. VI.

DECISION [38] For the reasons set out above, I would dismiss the accused’s appeal and confirm his conviction. JA I agree: JA I agree: JA