R v DGM, 2018 MBCA 88

Citation: R v DGM , 2018 MBCA 88 Date: 20180830 Docket: AR16-30-08714 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : ) W. Y. Martin White and ) M. R. Katsanos HER MAJESTY THE QUEEN ) for the Appellant ) ) A. C. Bergen Respondent ) for the Respondent ) - and - ) S. A. Inness ) for trial counsel D. G. M. ) R. G. Poole ) ) Appeal heard: (Accused) Appellant ) August 29 and 30, 2018 ) ) Decision pronounced: ) August 30, 2018 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). beard JA (for the Court): I. THE ISSUES [ 1 ] The accused is appealing his convictions on two counts of sexual interference under

section 151 of the Criminal Code , the sole ground of appeal being that he failed to receive effective assistance of counsel that resulted in a miscarriage of justice. In support of his appeal, he has filed a motion for this Court to admit fresh evidence. [ 2 ] At the conclusion of the hearing, the appeal was granted and a new trial was ordered, with further reasons to follow. These are those reasons. [ 3 ] The accused is alleging that the legal assistance provided by his trial counsel was ineffective for the following reasons: (

i) the trial lawyer failed to call evidence that the accused had a medical condition related to his ability to have sexual intercourse (erectile dysfunction); (ii) the trial lawyer failed to prepare the accused and the defence witnesses to testify; (iii) the trial lawyer failed to properly prepare for the cross-examination of the complainant and that the cross-examination was inadequate; (iii) the trial lawyer failed to give the accused proper advice regarding the decision to re-elect from a judge-and-jury trial to a judge- alone trial; and (iv) the trial lawyer failed to give the accused proper advice regarding whether to testify.

II. THE LAW [4] An accused can challenge a conviction on the basis that he received ineffective assistance of counsel at his trial andthat the ineffective assistance occasioned a miscarriage of justice. When counsel fails to provide effective representation, the fairness ofthe trial, measured by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict,suffers. In some cases, the result will be a miscarriage of justice.

An accused who is the victim of a miscarriage of justice is entitled toat least a new trial. (See R v Joanisse (1995), (ON CA), 102 CCC (3d) 35 at 56-57 (Ont CA).) [5] The legal principles that define a claim of ineffective assistance of counsel were recently reviewed and summarizedby this Court in R v Le (TD), 2011 MBCA 83, as follows (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] atpara. 29, there is no need to evaluate the performance component if the prejudice component has not been proven. In order to determinewhether 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. [6] If it is probable that the incompetent representation resulted in an unfair adjudicative process, it is not necessary toask whether the verdict would have remained the same absent the incompetence, as an unfair adjudicative process, alone, clearly wouldresult in a miscarriage of justice.

Even if the alleged incompetence could not have affected the fairness of the adjudicative process, it isstill necessary to consider whether the presumed incompetence affected the reliability of the verdict (see Le at paras 180-84). [7] It is the accused who bears the burden of submitting evidence to establish the factual foundation underlying theallegation of ineffective representation (see Le at para 178).

If the accused proposes to do so by filing fresh evidence (as opposed torelying solely on the trial record), the procedure to determine the admissibility of that fresh evidence was recently set out by the BritishColumbia Court of Appeal in R v Aulakh, 2012 BCCA 340, as follows (at para 68): In

summary, I would propose to consider the appellant’s application to adduce fresh evidence in the following manner: 1. Determine if the fresh evidence is admissible under the rules of evidence (e.g., no hearsay, speculation, opinion or mere argument). 2. If the fresh evidence complies with the rules of evidence and if it is apparent from the trial record that the fresh evidence could notreasonably have affected the result (assuming the allegations of ineffective representation could be established) there is no miscarriage ofjustice and the application to adduce fresh evidence and the appeal should be dismissed. 3.

If that determination is not apparent and the fresh evidence in support of the allegation of ineffective representation is relevant to thatissue and credible, admit the fresh evidence for the limited purpose of determining the allegation of ineffective representation, an issuethat was not adjudicated at trial. At this stage the fresh evidence will not be admissible to determine the substantive issue of whether amiscarriage of justice has occurred. 4.

In considering whether the performance component of the test for ineffective representation has been established, apply the standardof “reasonable professional judgment”, remembering that the appellant must establish the facts underlying the claim of ineffectiveassistance on a balance of probabilities. 5.

If the performance component of the ineffective assistance of counsel claim is established, consider whether the appellant hasestablished the prejudice component of the test, namely a “reasonable probability” that the outcome of the trial would have been differentif the appellant had received the effective assistance of counsel (i.e., if there has been a miscarriage of justice). If the answer is yes, thefresh evidence application should be granted, the appeal allowed, and a new trial ordered.

If the answer is no, the fresh evidence and theappeal should both be dismissed. [8] The jurisdiction to admit new evidence on appeal is set out in section 683(1) of the Criminal Code, which makes theevidence admissible if it is “in the interests of justice” to do so.

That determination is usually made by the application of the criteria setout in Palmer v The Queen, (SCC), [1980] 1 SCR 759 at 775, being: (1) that the evidence should not generally beadmitted if, by due diligence, it could have been adduced at trial, provided that this general principle will not be applied as strictly in acriminal case; (2) that the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3)that the evidence must be credible in that it is reasonably capable of belief; and (4) that the evidence must be such that, if believed, itcould reasonably, when taken with the other evidence, be expected to have affected the result. [9] The Palmer criteria do not, however, apply to every motion to admit new evidence.

For the reasons explained by thisCourt in R v Richard (DR) et al, 2013 MBCA 105 at paras 202-204, they apply where the reliability of the verdict is being challenged,

but they do not apply where the evidence is directed at the fairness of the trial process.

Where the proposed new evidence is directed at the fairness of the trial process, the court must conduct “an examination of the grounds of appeal raised, the material tendered and the remedy sought” (at para 204) which may include “material extraneous to the trial record” so long as it is relevant to the issue alleged to have affected the fairness of the trial process. [ 10 ] If it is determined that the fairness of the process or the reliability of the verdict was affected by the presumed incompetence, then the court will have to determine whether the actions of counsel were, in fact, incompetent.

This is a high standard, as there is a presumption that the counsel’s conduct fell within the wide range of reasonable professional assistance. III. THE FACTS [ 11 ] The complainant is the step-granddaughter of the accused. Due to problems with her behaviour while living with her parents and three siblings, the decision was made for her to live with her grandparents. She moved in with them in 2006, at which time the grandparents’ friend DM and her daughter SM were also living with them. In 2006, the complainant was 11 years old and SM was 12 years old.

On a number of occasions, the complainant asked to return to live with her parents, but her parents refused. She made that request again in 2010 and was again refused. At that time, she disclosed to her mother that the accused was touching her inappropriately. This resulted in her immediately returning to her parents’ home and led to these charges.

At the trial, the complainant testified that the accused had begun by touching her breasts and butt, which led to him having sexual intercourse with her from two to four times per week for two years. [ 12 ] The accused always denied that he had sexually assaulted the complainant in any way. Further, he told both of his lawyers that he had erectile dysfunction as a result of which it would not have been possible for him to have had sexual intercourse with her as she alleged.

This evidence was not led at the trial. [ 13 ] The accused retained a lawyer (the first lawyer) who conducted his preliminary inquiry and set the matter down for a jury trial. There are notes on the file confirming discussions between the first lawyer and the Crown about this defence but no indication that that lawyer followed up with any of the accused’s doctors or other witnesses. [ 14 ] The first lawyer left the legal practice on short notice for personal reasons, and a second lawyer took over the accused’s file (the trial lawyer).

After some discussion with the trial lawyer about alternative available trial dates, the accused agreed to re-elect from a jury trial to a judge-alone trial to ensure that the trial lawyer would be available for the trial. The matter was set for a judge-alone trial. [ 15 ] The trial took place in April 2016, at which time the trial lawyer called three witnesses to testify on behalf of the accused, being the accused’s wife, DM and SM. He did not call any evidence or file any medical records regarding the accused’s defence of erectile dysfunction and the accused was not called to testify.

The evidence of the complainant regarding the sexual assaults was uncontradicted and the accused was convicted as set out above. Even before he was sentenced, the accused had contacted Legal Aid to voice his concerns about the conduct of his trial. IV. DECISION [ 16 ] By way of a motion to admit fresh evidence, the accused proposes to file several affidavits. The admissibility of some affidavits that attach the contents of his trial file and medical information is not contested. Five affidavits, being from himself, his wife, DM, SM and his doctor, are being contested by the Crown.

As well, the trial lawyer filed an affidavit responding to the allegations of ineffective representation. By consent, the parties agreed that the Crown could cross-examine the affiants of the five contested affidavits and the accused could cross-examine the trial lawyer.

Erectile Dysfunction [ 17 ] The first claim of incompetency relates to the trial lawyer’s failure to obtain medical evidence of the accused’s erectile dysfunction and to lead any evidence in that regard at the trial. [ 18 ] The Crown is challenging the admissibility of the accused’s evidence in that regard on the basis that his assertion that his erectile dysfunction was such that he could not have committed the offences is not credible and could not have affected the verdict. [ 19 ] There was independent evidence to support the accused’s evidence regarding erectile dysfunction, such that his evidence cannot be dismissed as being not credible.

In cross-examination, the accused’s wife maintained the evidence in her affidavit that they had not been able to have sexual intercourse for 15 years due to his medical condition. The medical records that were filed provided support for his testimony that he had been seeing medical doctors for erectile dysfunction for a number of years before the alleged offences, as well as after. The doctor stated that the medication that he had been taking for many years for anxiety and depression can have the side-effect of causing erectile dysfunction.

Thus, the factual component related to the claim has been established for the purpose of this appeal. It will be for a trial judge to determine the admissibility and weight of any evidence of erectile dysfunction that is led at a new trial. [ 20 ] There is some evidence that the accused may have, at least at times, been capable of a partial erection and ejaculation. The Crown argues that, because it appears that the accused may not have been completely and permanently impotent, this evidence does not prove that he could not have committed the offence.

This may be the case if the complaint had been that of one or a few instances of intercourse. In this case, however, the complainant alleged that the accused had intercourse with her two to four times per week for two years.

While the trial judge found that that was not fully credible and that she really meant regularly and often, a finding of significant erectile dysfunction, even if not permanent and complete, if accepted at trial, calls into question the credibility of the complainant’s allegations that they had sexual intercourse regularly and often over a period of two years. [ 21 ] The next issue is whether the presumed incompetence in not leading this evidence resulted in a miscarriage of justice. The evidence of erectile dysfunction was important to any challenge of the complainant’s credibility in at least two respects.

First, that

evidence would have led to further avenues of cross-examination of the complainant as to how the sexual intercourse took place, whichwas relevant to her credibility.

Because the trial lawyer neither obtained any evidence about the accused’s erectile dysfunction nor ledany evidence in that regard, that cross-examination was neither considered nor attempted. [22] Further, the fact of erectile dysfunction, if accepted as a fact at trial, when added to the other factors led at trial and/ordisclosed in the evidence that challenged the credibility of the complainant’s testimony, may reasonably have affected the ultimatedetermination of the credibility of her testimony and, therefore, the verdict that rested largely on her testimony.

Thus, the presumedincompetence resulted in a miscarriage of justice. (See R v M (PS) (1992), (ON CA), 77 CCC (3d) 402 at 422 (OntCA).) [23] This leads to the question of whether the trial lawyer’s performance in not leading this evidence was incompetent. Inhis affidavit, the trial lawyer stated: I do recall being aware that there was some documentation in the file pertaining to erectile dysfunction and the fact the [accused] hadbeen taking medication for same. I recall this was a possible defence the [accused] wished to advance.

I recall trying to get a hold of hisdoctor a couple of times by telephone but the calls were not returned and I have no explanation as to why I failed to follow up by letter orotherwise. [24] The trial lawyer was candid in confirming this evidence in cross-examination, and offered no further explanation for nottaking any steps to speak to the doctors or call the evidence at the trial. Thus, the allegation of ineffective assistance of counsel inrelation to the failure to call any evidence regarding erectile dysfunction at the trial is made out. This evidence is receivable on theappeal.

Unfair Trial Process [25] We will deal with two of the allegations of ineffective representation as they relate to whether there was an unfair trialprocess. [26] First, the accused states that he did not receive proper advice regarding whether to testify at the trial, and that the triallawyer failed to prepare him to testify. While the accused and the trial lawyer had somewhat different recollections of exactly what wassaid, the accused’s evidence that he did not receive any advice about whether to testify was supported by that of the trial lawyer.

In hisaffidavit, which he confirmed on cross-examination, the trial lawyer stated: I have no specific recollection of preparing the [accused] in the event he would be required to testify. While I would like to believethat I would have discussed the possibility of him testifying during a telephone meeting, I have no recollection of doing so nor do I haveany notes to assist me with my memory. . . . I do, however, recall asking the [accused] after the close of the Crown’s case if he wantedto testify and he said no.

I have no specific recollection of what advice or information I may have provided to the [accused] with respectto his decision whether or not to testify, and I have no recollection of having provided him with a recommendation one way or the other. [27] The decision of whether the accused would take the stand and deny the allegations was particularly important in thiscase. The only evidence of inappropriate sexual conduct was that of the complainant. Without a denial by the accused, it stooduncontested.

It is difficult to see how the trial judge would completely reject the complainant’s testimony when there was no denial onrecord by the accused and all of the evidence, including that of the defence witnesses, supported the complainant’s evidence as toopportunity. It was very important that the accused receive advice to understand the risk that would be occasioned by a decision on hispart not to testify before he made that decision. [28] Second, the accused states that he did not receive proper advice regarding whether to re-elect from a jury trial to ajudge-alone trial.

Again, the trial lawyer was candid in admitting the limited discussion that he had with the accused regarding whetherto re-elect. While he did speak to him about this issue, he did not discuss with him any of the advantages and disadvantages of thesealternative modes of trial. The discussion was limited to the fact that earlier trial dates were available for a judge-alone trial and that thetrial lawyer would be available to do a judge-alone trial but was retiring and, therefore, not available to do a later jury trial.

The triallawyer advised the accused that he could not say whether a substitute lawyer would be an experienced or inexperienced trial lawyer.

Hecould not say that he had ever discussed the tactical advantages and disadvantages of each mode of trial. [29] Thus, it is clear that the factual component of these allegations has been established. [30] The next question is whether the failure to provide any advice regarding the tactical advantages and disadvantages ofre-electing from a jury trial to a judge-alone trial and as to whether to testify affected the fairness of the trial process. [31] In R v Stark, 2017 ONCA 148, the accused was arguing ineffective assistance of counsel because he was not given anadequate opportunity to consider electing his mode of trial.

Lauwers JA, speaking for the Court, stated (at paras 17-18, 20): The elements of the defence that an accused person is entitled to control were discussed by G. Arthur Martin, as he then was, in hisseminal

article entitled The Role and Responsibility of the Defence Advocate (1969-70) 12 Crim. L.Q. 376. He mentioned three defencedecisions that only the client can make: how to plead; whether to waive a trial by jury where that is permissible; and whether to testifyon his own behalf. There are doubtless others. Mr. Martin made the following observation, at p. 387: Obviously, neither counsel nor anyone else can deprive an accused of his fundamental rights. If the accused insists on giving evidence

or insists on a jury trial, contrary to counsel’s advice, counsel cannot, as a matter of law, prevent him from exercising those rights. In my view, the right to elect the mode of trial under s 536 of the Criminal Code is one of those fundamental rights that counselcannot take from a client and on which the client is entitled to be adequately advised by counsel. If an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, thenthe accused has effectively been denied his right to choose his mode of trial under s. 536 of the Criminal Code.

The miscarriage ofjustice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establishfurther prejudice.

What the accused might or might not have done had he been aware of his options is not relevant. [32] While the Court in Stark was dealing with the right to elect the mode of trial, these comments apply equally to thedecision of whether to testify, which was identified in Stark as another fundamental right of an accused and about which he was entitledto receive advice from his trial counsel before making a decision as to how to proceed. [33] We are of the view, based on the evidence of both the accused and the trial lawyer, that the trial lawyer did not give theaccused any advice about the advantages and disadvantages related to the crucial decisions of re-electing to a judge-alone trial and oftestifying in his own defence.

Thus, we are of the view that these facts are sufficient to fatally undermine the fairness of the trial andconstitute a miscarriage of justice. [34] Further, the trial lawyer acknowledged that he was aware that the accused wished to advance a defence of erectiledysfunction and that he failed to follow-up on that defence by not investigating the medical evidence, by not discussing this defence withany of the defence witnesses and by not leading any evidence in that regard. [35] It is also a principle of fundamental justice that an accused has the right to control his or her own defence.

This rightwas recognized by the Supreme Court of Canada in R v Swain, (SCC), [1991] 1 SCR 933, wherein Lamer CJ, for themajority on this point, stated (at p 972): Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which isfounded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice mustalso require that an accused person have the right to control his or her own defence. . . .

An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and whatwitnesses to call. This is a reflection of our society’s traditional respect for individual autonomy within an adversarial system. [36] In our view, in the circumstances of this case, the failure of the trial lawyer to investigate this key aspect of theaccused’s defence or to advise the accused about the use of this defence in his trial also contributed to the undermining of the fairness ofthe trial and the resulting miscarriage of justice.

Method of Conducting Cross-Examinations [37] In this case, counsel on appeal were not in agreement as to whether the cross-examinations should take place viva vocebefore the panel or out of court and provided to the Court by way of transcripts. Because this matter has been outstanding for over eightyears and, further, the affiants were present and had travelled some distance, we agreed to proceed by way of viva voce hearing.

It isimportant, however, to re-state the following direction by this Court in R v Harry, 2013 MBCA 108 (at para 94): Any cross-examinations on supporting affidavits should take place prior to the hearing. Transcripts should be filed by the party whowishes to rely on the cross-examination.

Where counsel wishes to conduct a cross-examination on an affidavit before the panel (whichis a rare occurrence), prior permission should be obtained by contacting the Registry Office. [38] While counsel were of the view that the credibility of the evidence made a viva voce hearing important, it should benoted that many appeals raise credibility as a ground of appeal and this Court regularly deals with that issue based on transcripts. We cando no better than to repeat the above admonition that cross-examination before the panel is to be a rare occurrence. V.

DISPOSITION [39] Given these findings, we would grant the accused’s motion to admit some of the fresh evidence, to the extent ofadmitting the affidavits that have not been contested and those of the accused, his wife and his doctor as specifically referred to herein, aswell as the affidavit of the trial lawyer and the cross-examinations on those affidavits. Given these findings, it is not necessary to dealwith the motions to admit the evidence of DM and SM and the allegation of ineffective representation related to the failure to prepare thethree defence witnesses to testify.

[ 40 ] We are, therefore, granting the accused’s appeal and setting aside his conviction. As there is evidence that could support a conviction, we are ordering a new trial. JA JA JA