R. v. Fraser, 2011 NSCA 70

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Fraser , 2011 NSCA 70 Date: 20110721 Docket: CAC 330167 Registry: Halifax Between: Antoine Fraser Appellant - and - Her Majesty the Queen Respondent - and - Lawrence William Scaravelli Intervenor Editorial Notice Identifying information has been removed from this electronic version of the judgment. Publication Ban: pursuant to s. 486.4 of the Criminal Code of Canada Judges: Saunders, Oland and Beveridge, JJ.A.

Appeal Heard: June 1 and 2, 2011, in Halifax, Nova Scotia Held: Motion for leave to admit new evidence on appeal granted; appeal allowed, conviction set aside and a new trial ordered per reasons for judgment of Saunders, J.A.; Oland and Beveridge, JJ.A. concurring. Counsel: Craig M. Garson, Q.C. and Joshua M. Arnold, Q.C., for the Appellant Mark Scott, for the Respondent Michael Wood, Q.C. and Lauren Grant (Articled Clerk) for the Intervenor

486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or Reasons for judgment : [ 1 ] The appellant is a former high school teacher who was accused of various sexual improprieties by a former student. [ 2 ] After a trial by judge and jury he was convicted of touching for a sexual purpose contrary to s. 153 (

a) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 and sentenced to nine months ’ incarceration followed by one year probation and 50 hours of community service work and a SOIRA order. [ 3 ] He asks that the verdict be overturned and a new trial ordered on the grounds that he did not receive effective assistance from his trial counsel, and that the Crown breached its obligation to provide the defence with ongoing disclosure. [ 4 ] For the reasons that follow I would allow the appeal, set aside the conviction and order a new trial.

As to the first ground of appeal, I have reached the conclusion that the legal advice and representation Mr. Fraser received was ineffective. He was denied his constitutional right to make full answer and defence and a miscarriage of justice occurred. As to the second ground of appeal, I am satisfied the Crown met its disclosure obligations. [ 5 ] I will begin these reasons by providing sufficient background information to establish a context for the issues and the analysis that follows. Further detail will be provided when elaboration is required.

Background [ 6 ] The appellant and his wife Lisa were married in July, 1998. They have three children ranging in age from 1 to 11. Mr. Fraser holds bachelors and masters degrees in education and has taught at the high school level since September, 2000. In September, 2001, he began teaching at * High School and remained there until June, 2007, when he transferred to * High School where he taught until he was suspended by the Halifax Regional School Board as a result of allegations made against him by the complainant, J.M.

[ 7 ] J.M. had been a student of his during the first term of her Grade 10 year. This period spanned September, 2006 until the end of January, 2007. At the time of their alleged affair the complainant was 15, the appellant 33. [ 8 ] J.M. ’ s evidence was that she and the appellant first formed a friendship which later developed into a sexual relationship at a point after she completed the course he was teaching.

The appellant denied ever having had a sexual relationship with the complainant. [ 9 ] J.M. testified at trial that she developed “ a crush ” on the appellant in the Fall of 2006 when he taught her Grade 10 English. During the second semester she said she would hang out in his classroom during lunch hours or after school, often with other students present, and that eventually he drove her home. [ 10 ] The complainant said she and the appellant had physical encounters in his car during which time they would kiss and touch each other, sometimes with their clothes off.

Her trial evidence was that they started talking about sexual intercourse before she turned 16 on May *, 2007, and that she started taking birth control in or about March/April, 2007. [ 11 ] The complainant ’ s trial testimony was that the first time she and the appellant had sexual intercourse was a few days after her 16th birthday, in her bedroom one afternoon that her parents weren ’ t home.

She also testified to having had intercourse with the appellant on subsequent occasions — a few times in her room; in the appellant ’ s car at locations where they went to park; at the appellant ’ s house; and at another family ’ s home where she babysat. [ 12 ] The appellant knew that the complainant had serious self-destructive tendencies in high school which included her overdosing on medication and cutting herself. [ 13 ] Matters came to a head in April 2008 when J.M. told the appellant that her father had sexually assaulted her when she was a child.

The appellant told the complainant that she should call the police and tell her principal. She refused, prompting the appellant to say that he would have to do it for her. He contacted the RCMP liaison officer and reported the matter but did so anonymously, having been told by the complainant that her father was *. [ 14 ] On June 13, 2008, the complainant met with her school principal. She said an investigation had been commenced into her relationship with the appellant, at the request of her father. In her initial discussions with the principal J.M. described their relationship as purely platonic.

In a subsequent conversation she said she wanted the police present. A police officer attended at the school. J.M. told the officer that her father had molested her when she was 11 years of age. She provided details of what had occurred. The police then contacted the complainant ’ s father, * , and described the allegations his daughter had made. [ 15 ] On June 13th, 2008, Mr.

Fraser was notified by his union representative that J.M. had made serious allegations against him and that he was going to be suspended with pay. [ 16 ] On June 17, 2008, the police arranged for a formal statement to be taken from the complainant. When she was leaving for the police station her father said “ what you say could cause me to be charged or put away ” . Later, in her taped statement to the police, J.M. denied that her father had molested her, but said that she had had a sexual relationship with the appellant. [ 17 ] On September 22, 2008, Mr.

Fraser received a voice message from Constable Lisa MacDonald of the Halifax Regional Police Service that she wished to speak to him. The appellant immediately called Lawrence W. Scaravelli the intervenor and spoke with him by telephone. The intervenor assured him that he “ would deal with it ” . [ 18 ] On September 23, 2008, the intervenor called Mr. Fraser and told him to go to the Halifax Police Station as he was about to be charged. He instructed the appellant that as soon as he was processed he should come directly to the intervenor ’ s office. Mr.

Fraser reported to the police at approximately 10:00 a.m. on September 23, 2008, accompanied by his wife, their daughter, and the appellant ’ s mother, just as the intervenor had directed. After leaving the police station the appellant and his family met with the intervenor at his office. The appellant retained the intervenor to act as his lawyer at his trial.

[ 19 ] The trial began with jury selection on Monday, December 7, 2009. At some point that morning Mr. Alonzo Wright, one of two Crown attorneys on the case, advised the appellant ’ s trial counsel of a discussion he had had with the complainant over the weekend when she disclosed new information relevant to the charge. Mr. Wright provided notes of his conversation with the complainant to the appellant ’ s trial lawyer. Whatever use was made of this new information by the appellant ’ s lawyer will be addressed in the Analysis

section of this decision that follows. [ 20 ] At trial the Crown called six witnesses including the complainant. Some witnesses were called to rebut any assertion of recent fabrication. Some were called to provide narrative as to the circumstances surrounding disclosure. Others provided some corroboration concerning the existence of a relationship between the appellant and J.M. [ 21 ] The defence called three witnesses including the appellant. While Mr. Fraser admitted a mentoring and counselling relationship with the complainant, he vigorously denied ever having had any sexual relationship. [ 22 ] The appellant advances two grounds of appeal:

(1) The Appellant did not receive effective assistance from his trial counsel such that the reliability of the jury’s verdict was compromised and a miscarriage of justice resulted;

(2) The Crown breached its obligation to provide the defence with ongoing disclosure by failing to provide the defence with the statement it obtained from the Appellant’s wife, Lisa Fraser, during the trial. This second ground of appeal was amended by Order of this Court dated December 14, 2010, to read: The Crown breached its obligation to provide the defence with ongoing disclosure by (

i) failing to provide to the defence the notes made by Crown Attorney Alonzo Wright of his telephone conversation with the complainant sometime during the week prior to the commencement of the Appellant ’s trial during which “new information ” relevant to matters at issue at trial were disclosed by the complainant for the first time and ; (ii) failing to provide the defence with the statement it obtained from the Appellant’s wife, Lisa Fraser, during the trial. (Underlining in original) [ 23 ] On appeal, the appellant ’ s trial counsel was granted formal intervenor status.

The scope of his participation was limited to filing a factum, and an affidavit on the fresh evidence application, and to presenting oral argument restricted to the allegation concerning his competence, but not with respect to any aspect of the merits of the appeal. [ 24 ] The appellant moved to introduce fresh evidence pursuant to s. 683(1) (

d) of the Criminal Code . This took the form of his own lengthy affidavit with exhibits attached, together with affidavits filed by seven other individuals whose evidence was considered relevant and important to the issues raised on appeal and to support the appellant ’ s request for a new trial. [ 25 ] The appeal was heard June 1 and 2. Two days were required to consider the appellant ’ s fresh evidence motion, the questioning of several affiants under oath, and to hear counsels ’ submissions. [ 26 ] I will address the admissibility of this fresh evidence later in these reasons.

First, I will deal with certain preliminary matters. Preliminary Matters [ 27 ] In communications with the Court prior to the appeal hearing, the Crown initially objected to certain exhibits filed by the

appellant in support of his fresh evidence motion, on the basis that parts of correspondence were protected by “ plea negotiation privilege ” . However, at the commencement of the appeal the Crown withdrew its objection on that issue, such that we are no longer obliged to deal with it. [ 28 ] The Crown ’ s remaining objections were not vigorously pursued. They were restricted to what I will term subsidiary concerns involving relevance or hearsay related again to some of the information contained in the appellant ’ s affidavit, or his several supporters ’ affidavits on the fresh evidence application.

I am satisfied that I may now dispose of those concerns summarily. Having had the benefit of extensive questioning of the affiants at the hearing, together with counsels ’ comprehensive oral submissions, it seems to me that such concerns no longer present themselves. Any technical argument that a particular comment found in an exhibit appended to one person ’ s affidavit ought instead to have been attached to another person ’ s affidavit was sorted out by the time each affiant had testified. Concerns about authenticity or hearsay have been resolved.

Similarly, I have no doubt that the information contained in the affidavits filed on appeal is relevant to the matters before us and, therefore, satisfies that criterion in the Palmer analysis. I will say more about that later. Issues [ 29 ] Mr. Fraser has identified a host of specific actions, omissions or missteps which he says proves beyond any doubt that the legal representation he received from his trial counsel was ineffective and resulted in a miscarriage of justice. [ 30 ] The appellant ’ s outline of complaints is detailed and comprehensive.

I wish to list them verbatim before turning to a consideration of the law, the merits of such serious allegations, and their consequences: Omissions (

i) failing to advise the Appellant that he had the right under R. v. Parks to challenge prospective jurors for cause as to whether their ability to judge the evidence without bias, prejudice or partiality would be affected by the fact that the accused is a black man and the complainant is a white teenage female - especially given the concerns expressed by the Appellant to Mr.

Scaravelli during their first meeting on September 23, 2008 and again both before and after jury selection on December 7, 2009 (“the Parks issue”); (ii) failing to provide the Appellant with any information or advice regarding his statutory right to elect and re-elect his mode of trial; (iii) failing to conduct an effective cross-examination of the complainant at the preliminary hearing for use at trial; (iv) failing to adequately prepare for trial, be it as a result of his failure to: (

a) conduct an effective cross-examination of the complainant at the preliminary hearing for use at trial; (

b) understand the case for the defence; (

c) interview potential defence witnesses; (

d) know the relevant law; (

e) seek disclosure of the notes of Crown Attorney Alonzo Wright relating to the complainant’s “new information”; and/or (

f) any combination of the foregoing such that material issues relevant to the Appellant’s defence at trial were either not explored sufficiently or at all; (

v) failing to request disclosure from the Crown of Alonzo Wright’s notes from his telephone conversation with the complainant and, failing production by the Crown, to make a disclosure application; (vi) failing to request that the Crown obtain a formal statement from the complainant with respect to the “new information”; (vii) failing to advise the Appellant of his right to request an adjournment of his trial as a result of the “new information” disclosed by the Crown;

(viii) failing to understand the importance of the time line evidence and to cross examine the complainant and adduce defence evidence at trial with respect thereto; (ix) failing to request a copy of the statement given by Lisa Fraser to the police on Friday, December 11, 2009; Acts (

x) filing the Appellant’s Affidavit (sworn December 4, 2009) on the s.276 Application in circumstances where a s.276 Application was unnecessary and where, even if it were, an Affidavit from the Appellant was not required to be filed and which, by doing so, unnecessarily exposed the Appellant to cross-examination on said Affidavit; and (xi) advising the trial Judge and Crown counsel on Friday, December 11, 2009, following the conclusion of the cross-examination of the Appellant and without instructions from the Appellant, that “that’s the evidence for the defence”. [ 31 ] The appellant ’ s second ground of appeal alleges a failure on the part of the Crown to provide him with proper and full disclosure.

This ground has two parts. Mr. Fraser alleges that the Crown breached its disclosure obligation by its: (

i) failure to produce to the defence the notes made by Crown Attorney, Mr. Alonzo Wright of his telephone conversation with the complainant very close to the start of the appellant’s trial, during which “new information” relevant to matters at issue at trial were disclosed by the complainant for the first time; and (ii) failure to provide the defence with a copy of the statement taken by the police from the appellant’s wife, Ms.

Lisa Fraser, during the trial on Friday, December 11, 2009, at the direction of the Crown. [ 32 ] Before addressing the appellant ’ s grounds of appeal I will first consider his application to adduce fresh evidence. Fresh Evidence [ 33 ] The fresh evidence before us on appeal comprises ten affidavits together with the testimony of several of those affiants during questioning under oath at the appeal hearing. I will list the affidavits filed with the Court as part of the fresh evidence application: 1. Antoine Fraser (appellant) sworn October 18, 2010 2. Lisa Fraser (appellant ’ s wife) sworn October 18, 2010 3.

Erin Rose Fraser (appellant ’ s mother) sworn October 18, 2010 4. Reverend Wayne Desmond sworn March 22, 2011 5. Viola Fraser (appellant ’ s aunt) sworn October 16, 2010 6. Rosella Fraser (appellant ’ s aunt) sworn October 16, 2010 7. Woo Yong Yung (appellant ’ s son ’ s Tae Kwon Do instructor) sworn October 15, 2020 8. Glenwood Lawrence Selig (retired police officer) sworn October 15, 2010 9. Lawrence W. Scaravelli (intervenor) sworn November 23, 2010

10. Alonzo Wright (Senior Crown Attorney) sworn November 22, 2010. [34] The law governing the admission of fresh evidence on appeal is well settled and has been extensively considered by this Courtin recent cases. See, for example, R. v. West, 2010 NSCA 16; R. v. Hobbs, 2010 NSCA 53; and R. v. Messervey, 2010 NSCA 55. Section 683(1) of the Criminal Code permits the Court of Appeal to allow the introduction of fresh evidence “where it considers it inthe interests of justice”. In R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, at p. 775, the Supreme Court said the “interests ofjustice” in s. 683(1)(

d) are governed by four factors:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases. ...

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and,

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [35] I am satisfied that every factor is clearly established in this case. The second, third and fourth may be dispensed with quickly. There can be no doubt that the evidence and viva voce testimony is relevant. It strikes at the heart of the appellant’s complaint that hesuffered a miscarriage of justice at the hands of his trial counsel.

The evidence relates to the acts or omissions which are said to haveseriously prejudiced the appellant’s ability to defend himself. The evidence is reasonably capable of belief and when considered alongwith the other evidence adduced at trial, it could reasonably be expected to have affected the result. [36] The first factor, the so-called due diligence criterion, invites a more detailed examination. After careful review, I am notprepared to say that a strict enforcement of this requirement ought to bar the admission of fresh evidence in this case.

First, we know thatthis general principle will not be applied as strictly in a criminal case as in a civil case. Second, we know that the failure to exercise duediligence is not determinative. Third, we know that the due diligence criterion should not be applied inflexibly and will yield where itsapplication might lead to a miscarriage of justice. See, for example, Palmer, supra; R. v. Wolkins, 2005 NSCA 2 (and the host of casescited therein); R. v. Assoun, 2006 NSCA 47 at ¶ 297, leave to appeal ref’d [2006] S.C.C.A. No. 233; R. v. Jones, 2006 NSCA 136, at¶ 14; R. v.

Angelillo, 2006 SCC 55 , [2006] 2 S.C.R. 728. [37] But even more significant is the fact that the first criterion requires any applicant seeking leave to adduce fresh evidence onappeal, to demonstrate in effect, that the exercise of reasonable diligence at trial would not have mattered. In other words, carefulpreparation would not have uncovered the new information. But here the principal ground of appeal is that Mr. Fraser’s trial counselwas neither diligent in his preparations, nor effective in providing legal representation.

Surely, in such circumstances, when an appellantbases his appeal on a claim of ineffective assistance of counsel, one will not expect that appellant to make the case for due diligence. For it is the very lack of diligence upon which he rests his complaint and pins his hope for a new trial.

In such circumstances, it wouldhardly be in the “interests of justice” to refuse to admit evidence which forms the principal ground of appeal, simply because theapplicant may have difficulty in refuting the argument that the evidence should not be admitted because it could have been adduced attrial had due diligence been exercised. [38] It is also important to recall that Mr. Fraser’s complaints are not directed at findings of fact, or evidentiary rulings by the trialjudge but rather challenge the validity of the trial process itself.

His purpose in introducing the new evidence is to persuade us that theprocess was so unfair that he was denied the opportunity to effectively defend himself and respond to the Crown’s case against him. Asa result, he says the verdict is unreliable and must be set aside on the basis that a miscarriage of justice occurred.

The Ontario Court ofAppeal put it nicely in Truscott (Re), 2007 ONCA 575 at ¶ 85: 85 The second category of fresh evidence that may be tendered on appeal is not directed at re-litigating factual findings made at trial,but instead is directed at the fairness of the process that produced those findings. Where an appellant proffers this kind of evidence onappeal, he or she attempts to demonstrate that something happened in the trial process that materially interfered with his or her ability tomake full answer and defence.

An appellant claims that the verdict is rendered unreliable because the unfairness of the process deniedthe appellant the opportunity to fully and effectively present a defence and to challenge the Crown's case. When this kind of fresh

evidence is received and acted on in the court of appeal, the conviction is quashed as a miscarriage of justice. The miscarriage of justice lies in the unreliability of a verdict produced by a fatally flawed process. As I see it, that is precisely the situation here. [ 39 ] For all of these reasons I would exercise the wide discretion available to us under s. 683(1) and admit the new evidence on appeal in the interests of justice. [ 40 ] Before addressing the merits of Mr. Fraser ’ s appeal, I wish to explain the approach I have taken when assessing credibility.

Credibility/Reliability [ 41 ] Nothing in these reasons should be taken to be a commentary concerning the truth of the complainant ’ s accusations, or the appellant ’ s guilt or innocence on the charge against him. Those questions are distinct from the issues before the Court on this appeal. They will be decided by the judge or jury trying the case whenever Mr.

Fraser ’ s prosecution on this charge is renewed. [ 42 ] In our daily living and perpetual contact and commerce with persons in our community, we are invariably called upon to test the accuracy of assurances and statements made by others. [ 43 ] The same sort of assessment is conducted by judges and juries in court rooms across Canada every day. Not surprisingly, there are often conflicts or discrepancies in the evidence. When that happens, it falls upon the court to decide which evidence it prefers.

Here, such an evaluation is not conducted on a criminal standard which requires that proof of essential matters be established beyond a reasonable doubt. Rather in this case, we are bound to assess conflicting evidence and decide which is to be preferred, on the civil standard, that being a balance of probabilities. [ 44 ] In these reasons when I speak of “ credibility ” or “ reliability ” I do not mean to comment upon the “ honesty ” or “ truthfulness ” of any individual.

Rather, I use those words in their broadest sense as a way to capture the overall trustworthiness of the evidence, in other words, the extent to which it can be relied upon as fact, or a basis from which reasonable inferences might be drawn. [ 45 ] To explain the point I will offer a brief illustration. Suppose in a personal injury claim for damages it became important to establish that the plaintiff had been treated by a physician I will call Dr. Thorpe and that she had been given advice which the plaintiff insists she followed.

The plaintiff ’ s assertion is challenged by the defendant ’ s insurers. [ 46 ] By the time of trial - some seven years post accident - Dr. Thorpe is dead. All his office records were destroyed in a fire in the offices where he maintained a practice. The plaintiff testifies that she received the impugned advice from Dr. Thorpe at his walk-in clinic on a Saturday in September. She says she remembers the day clearly because it was cold and rainy. She had lost her umbrella while attending a concert the night before and so she arrived soaked at Dr. Thorpe ’ s office the next day.

She described herself as being a meticulous note-taker who typically recorded business, personal and family information on calendars she received from a favourite aunt every Christmas. Witnesses were called by the defence to challenge the accuracy of the plaintiff ’ s account. Weather records for September were introduced. They showed that it was unseasonably hot in September with few rainfalls recorded and none on a Saturday. The plaintiff ’ s calendars were tendered as exhibits. There was no mention of “ Dr. Thorpe ” or “ medical appointment ” or “ concert ” on any day that Fall.

Business records showed that meetings of the Social Studies Teachers ’ Association as well as an In- service training conference were held three of the four Saturdays in September, and that the plaintiff was registered for all of them. [ 47 ] In that illustration the plaintiff ’ s belief may well be honestly held. But it is open to the trier of fact (judge or jury) to conclude that she is honestly mistaken because her evidence is both internally inconsistent, and is contradicted by other evidence which the trier characterizes as being more reliable.

As a result, the trier prefers the defence evidence on the point and finds that the plaintiff has not established her position on a balance of probabilities. In other words, she has not shown that it is more likely then not, that her account is in fact correct.

[48] Such is the methodology used by judges and juries hearing civil cases across the nation every day. It is the same analysis that Ihave applied to the evidence in this case. [49] After considering the intervenor’s affidavit evidence and listening to his answers when questioned at the appeal hearing, it isobvious that his recollection of important matters is seriously deficient. Many of his answers were vague. Much of his evidence wasinternally inconsistent, and shown to be incomplete or inaccurate when contrasted with the evidence offered by the appellant and hiswitnesses.

There was very little in the way of written records to substantiate the lawyer’s testimony. I was troubled that at times hisresponses under questioning at the appeal appeared to reflect disdain for the process. I am not at all certain that with the benefit ofhindsight the intervenor would have chosen to act any differently. [50] While the appellant’s evidence was not without its problems, it was more detailed, and his description of his dealings with theintervenor were substantiated by the evidence of his mother, and his wife who were present at the initial meetings.

Moreover, thatevidence was not clearly refuted or denied by the intervenor. [51] I have concluded that wherever the evidence offered by the appellant and his witnesses differs in important material respectsfrom the evidence presented by the intervenor, I prefer and accept the evidence offered by the appellant. Put simply, I find it morereliable and trustworthy. [52] Before undertaking an analysis of the merits of the appellant’s grounds of appeal let me also be clear about one otherpreliminary point. Nothing in these reasons should be taken as indicating that the Crown has no case.

Clearly, there are problems forthe defence as well. Significant issues such as the detail surrounding the alleged sexual trysts; the frequency and content of their cellphone communications; the alleged exchange of gifts of a personal nature; and the independent sightings of the two being together, willall need to be explained to the next trier of fact. But that is for another court and another day. Analysis First Ground of Appeal: Ineffective Assistance of Counsel [53] Here again the law is well-settled.

As this Court said in West, supra: [268] The principles to be applied when considering a complaint of ineffective assistance of counsel, are well known. Absent amiscarriage of justice, the question of counsel’s competence is a matter of professional ethics and is not normally something to beconsidered by the courts. Incompetence is measured by applying a reasonableness standard. There is a strong presumption thatcounsel’s conduct falls within a wide range of reasonable, professional assistance.

There is a heavy burden upon the appellant to showthat counsel’s acts or omissions did not meet a standard of reasonable, professional judgment. Claims of ineffective representation areapproached with caution by appellate courts. Appeals are not intended to serve as a kind of forensic autopsy of defence counsel’sperformance at trial. See for example, B.(G.D.), supra; R. v. Joanisse (1995), (ON CA), 102 C.C.C. (3d) 35 (Ont.C.A.), leave to appeal ref’d [1996] S.C.C.A. No. 347; and R. v.

M.B., 2009 ONCA 524. [269] One takes a two-step approach when assessing trial counsel’s competence: first, the appellant must demonstrate that the conductor omissions amount to incompetence, and second, that the incompetence resulted in a miscarriage of justice. As Major J., observed inB.(G.D.), supra, at ¶ 26-29, in most cases it is best to begin with an inquiry into the prejudice component.

If the appellant cannotdemonstrate prejudice resulting from the alleged ineffective assistance of counsel, it will be unnecessary to address the issue of thecompetence. [54] After carefully considering the totality of circumstances in this case, I am satisfied that the appellant has demonstrated that theconduct and failures of his trial counsel amount to incompetence and that the incompetence resulted in a miscarriage of justice,necessitating a new trial.

[55] Nothing in these reasons should be taken as suggesting that any one of counsel’s failures here would, independently, establish aclaim of ineffective counsel in another case. Every situation is different and requires a close examination of all of the circumstancesbefore such a finding can be made. [56] Rather than analyze each and every act or omission listed by the appellant in his factum, I prefer to examine the legalrepresentation afforded the appellant in two areas. First, I will deal with challenge for cause. Then I will undertake a broader inquiry inthe area of trial preparation and performance.

Challenge for Cause [57] The appellant complains that despite repeated and specific inquiries, he was never advised by his trial counsel that he had astatutory right to challenge potential jurors for cause on the basis that he was black, the complainant was white, and that jurors mightdiscriminate against him on account of those circumstances. After a thorough review of the record, I am satisfied that the appellant’scomplaint is justified. [58] No informed discussion regarding challenge for cause in a potentially race-based case can occur without considering “theParks issue”. [59] R. v.

Parks, (ON CA), [1993] O.J. No. 2157 (Q.L.)(Ont. C.A.) was an appeal from a trial judge’s refusal topermit defence counsel to ask prospective jurors certain questions in the course of challenging those jurors for cause. There, theappellant was tried on a charge of second degree murder and convicted of manslaughter by the jury. He was sentenced to seven yearsimprisonment. The appellant was a drug dealer and the deceased was a cocaine user. The appellant was black. The deceased waswhite. An argument arose during a drug deal. The initial confrontation in an elevator escalated to a fight in the hallway.

The deceasedproduced a knife. The men struggled for control of the weapon. Moments later the deceased was found lying in the stairwell bleeding todeath from a stab wound to the heart. The appellant fled the scene. He was arrested later the same day and appeared to have beenstabbed in the left hand during the fight. [60] Prior to jury selection, defence counsel asked that certain written questions be put to each potential juror.

One question read: Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged isa black Jamaican immigrant and the deceased is a white man? [61] The trial judge refused to permit this question. Parks appealed.

Before the Ontario Court of Appeal the question was analyzedon the basis that it referred to a black accused, rather than a “black Jamaican immigrant”, without regard to his country of origin or hisstatus in Canada. [62] After a careful and detailed analysis, Doherty, J.A., on behalf of the unanimous court, wrote at ¶ 28: 28 I turn now to the principles applicable to the challenge for cause process.

The accused's right to challenge for cause based onpartiality is essential to both the constitutional right to a fair trial and the constitutional right, in cases where the accused is liable to fiveor more years' imprisonment, to trial by jury. An impartial jury is a crucial first step in the conduct of a fair trial: R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509 at p. 525, 63 C.C.C. (3d) 193 at p. 204. The accused's statutory right to challenge potential jurorsfor cause based on partiality is the only direct means an accused has to secure an impartial jury.

The significance of the challenge processto both the appearance of fairness, and fairness itself, must not be underestimated. (Underlining mine)

[63] Justice Doherty concluded his reasons at ¶ 93: 93 I have no reason to doubt the fairness of this trial, the impartiality of this jury or the validity of their verdict. However, the appellantwas denied his statutory right to challenge for cause. That right is essential to the appearance of fairness and the integrity of the trial. Theimproper denial of this right necessitates the quashing of the conviction without any demonstration of actual prejudice: R. v. Cloutier, (SCC), [1979] 2 S.C.R. 709 at p. 724, 48 C.C.C. (2d) 1 at p. 23, per Pratte J.

I would allow the appeal, quash theconviction, and direct a new trial on the charge of manslaughter. (Underlining mine) [64] Parks has since been endorsed by the Supreme Court of Canada in R. v. Williams, (SCC), [1998] 1 S.C.R.1128 and R. v. Spence, 2005 SCC 71. [65] Against that backdrop I will consider what transpired here. Mr. Fraser was arrested and charged on September 23, 2008.

Heand his family then immediately proceeded to the intervenor’s office where he gave his lawyer an overview of the allegations againsthim as they were known to him at the time. [66] There was never any formal contract of legal representation. The intervenor told the appellant that his fee would be“$25,000.00 up front”. It took the appellant and his relatives some time to raise the money which they turned over to the intervenor inNovember. [67] The appellant expressed his profound concerns surrounding the race issue immediately and repeatedly. As he states in hisaffidavit: "I explained to Mr.

Scaravelli that, being black, I was concerned and nervous about a jury. ... He also told me ...'don't worry about it, Igot lots of black guys off with all white juries before' ... . [68] It is clear from the pre-trial conference report which the intervenor filed with the court that he did not consider the Parks issueto be an issue. [69] Following jury selection the appellant told the intervenor: “I don’t like this” referring to the fact that the jury was all white.

Tothis he swears that the intervenor told him that “there was nothing we can do about it” and repeated what he had told him during theirinitial meeting at his office on September 23, 2008, namely, that he had “gotten lots of black guys off before with all white juries”. [70] The appellant’s version of events is corroborated by his wife and his mother. [71] The appellant’s affidavit goes on to say: 37. Mr. Scaravelli never told me that I had the right, as I have since been told by Mr.

Arnold that I had, to challenge potential jurors forcause on the basis that I was black, the complainant was white and that they may discriminate against me because I was black;notwithstanding that I had raised this very point with Mr. Scaravelli when I met with him on the day I was charged. 38. Had Mr. Scaravelli told me that I had this right I would have definitely asked him to challenge each juror for cause on this basis. (Underlining mine) [72] On May 31, 2010, Mr. Josh Arnold, Q.C., one of the appellant’s co-appeal counsel, wrote to the intervenor and asked:

Challenge for Cause 11. What discussions did you have with Mr. Fraser regarding a challenge for cause? [ 73 ] On June 2, 2010, the intervenor responded: 11. Mr. Fraser and I discussed challenges for cause. He wanted to know whether he could have or expect to have jurors who were his peers i.e. Canadians from his community or elsewhere. I told him he could not insist on that. I advised him that I did not find challenges for cause particularly helpful and more of a waste of time than anything else .

The system was set up so that people could go up to the Judge to discuss their reasons for not wanting to be at the Trial. I have my own way of selecting jurors . I have been very successful in the past with jury Trials. The simple system that I use seems to work. Mr. Fraser agreed that I should do whatever I thought was best. (Underlining mine) [ 74 ] At the appeal hearing, the intervenor was questioned by the panel on this issue.

While acknowledging that he had read the Parks case, he seemed confused as to whether he had read it before or after the appellant ’ s trial, first saying that he had not read it beforehand, and then changing his evidence to say that he had read it before the appellant ’ s trial. In any event, he admitted that he had never discussed the procedures outlined in the case with the appellant.

He also said he had only ever challenged jurors for cause in one other trial. [ 75 ] I have no doubt that the questions raised by the appellant in his discussions with the intervenor were related to his serious concerns about being tried by a jury for a sex related offence where the complainant was a white teenage girl and he was a black school teacher.

I am satisfied that the intervenor never meaningfully explained the process or objectives in challenging for cause or reviewed with the complainant his statutory right to challenge for cause based on the principles established in Parks . [ 76 ] I find that the intervenor ’ s failure to provide advice to the appellant in response to his client ’ s explicit and perfectly reasonable inquiries, effectively denied him his statutory right to challenge potential jurors for cause.

I accept what the appellant says in his affidavit, that had he been told he had this right, he would have asked his lawyer to challenge each juror for cause on the basis that he was black and the complainant was white and that jurors might discriminate against him for those reasons. [ 77 ] In his final submissions, Mr. Scott, counsel for the respondent Crown, properly acknowledged that if we were to reach such a conclusion, prejudice would in law be presumed (without any requirement that it be demonstrated) and a new trial ought to be ordered. With his customary candour, Mr.

Scott conceded: If that were to be the Court’s finding, we should pack up our tents and go home. [ 78 ] While trial counsel ’ s failing in and of itself would justify a new trial, I think it is important to undertake a somewhat broader inquiry into the area of trial preparation and performance, with specific attention paid to certain critical features. Trial Preparation and Performance [ 79 ] The criticisms that follow are not intended to grade counsel ’ s performance or serve as a primer for best practices. Such matters are generally the preserve of the Bar.

I recognize that most cases dealing with ineffective assistance claims relate to trial counsel ’ s performance during the trial itself; whereas appeals based on an alleged failure to investigate and prepare are relatively unusual. See Dale E. Ives, Failure to Interview a Potential Defence Witness as the Basis for an Ineffective Assistance of Counsel Claim (2008), 53 Crim. Law Q. 490. [ 80 ] I also recognize that busy trial lawyers have many other demands placed upon their professional and personal lives and do not have unlimited time and resources to expertly manage every case on their dockets.

Their performance should never be gauged on a

standard of perfection, nor subjected to a forensic audit whenever unfavourable results occur. The effectiveness of counsel is to beevaluated on an objective standard through the eyes of a reasonable person such that all an accused can expect of his or her defencecounsel is a level of competence based on a standard of reasonableness. In other words, the lawyer is “required to bring reasonable care,skill and knowledge to the performance of the professional service which he has undertaken.” Central Trust Co. v.

Rafuse, (SCC), [1986] 2 S.C.R. 147 at ¶ 57.) [81] The appellant has met the burden of showing that the level of careful investigation and preparation one would reasonablyexpect of any criminal trial lawyer in such a serious matter simply did not occur in his case. Considering the variety of examplesidentified in these reasons, it is obvious that the legal representation afforded the appellant was largely ineffective in critical areas. [82] I propose to address those failings by considering several discrete examples. [83] First, I will review the intervenor’s declared strategy.

Then I will discuss his refusal to consider the importance of AntoineFraser’s wife as a material witness. Next I will comment upon his failure to effectively challenge the Crown’s case on material issues, inways that should have been obvious. Next I will describe counsel’s failure to interview and call as defence witnesses persons who couldbe expected to seriously discredit the Crown’s case.

I will conclude with a discussion concerning a misguided s. 276 application, and afailure to seek an adjournment when first told the complainant had provided important last minute information to the Crown. [84] The intervenor described his trial strategy in his June 2, 2010, letter to Mr. Arnold as follows: The Trial strategy was not to question the complainant on the specific allegations of sexual assault. My strategy was to promotecollateral issues, not touching her claim of specific sexual acts. In my view, you cannot win a sexual assault case that way.

In addition,Antoine Fraser was denying that he had sex with the complainant so there were no new allegations to meet. ...

I will not attempt to ascribe meaning to this statement, but if the objective were to “promote collateral issues” then surely it ought to haveinvolved carefully identifying and prioritizing what those collateral issues were; establishing the factual basis by which they could beasserted; and then finding and properly preparing defence witnesses whose evidence would then discredit (or at the very least raise areasonable doubt about) the key issues supporting the Crown’s case. [85] When questioned at the appeal hearing the intervenor said that his strategy “in sexual assault cases where there’s a youngvictim” would be to “impeach the young victim’s statement” but “not necessarily” to “enhance the credibility and the believability” of hisown client.

When asked to explain this approach, he said that all of his efforts would be to impeach the victim of the alleged sexualassault. But because this was a case that would likely turn on the issue of credibility, he would be reluctant to produce other witnesseswho might support the appellant because, to his way of thinking, the jury might conclude that the appellant “was trying to damagecontrol” such that the jury “might dwell on damage control too much”. [86] This was the intervenor’s reason for not calling the appellant’s wife, Lisa Fraser, as a defence witness.

During their variousmeetings at the intervenor’s office, the appellant’s wife repeatedly told the intervenor that she could disprove parts of the complainant’sallegations. When asked to explain why he refused to consider her as an important material witness the intervenor replied: Because I was not going to call her as a witness. There was no upside to call her as a witness, only a down side. ... Because I talked to herenough really to know that I would not be putting her on the stand.

There was no up side to it, there was no advantage to it, only a hugedisadvantage, in my opinion. [87] Apparently the intervenor applied the same “strategy” in either not calling other witnesses who could have supported theappellant by providing evidence which could either corroborate his version of events or seriously discredit the complainant’s, or failingto seriously interview persons whose names had been provided by the appellant and his family to see if their evidence would be helpful. [88] I cannot conceive that a defence “theory”, or its application, such as I have just described would ever pass muster on a

reasonableness standard. It seems clear that trial counsel ’ s mind was made up from the very beginning that he would never call the appellant ’ s wife as a witness at his trial. Yet that decision was taken without ever having conducted an effective interview, from which he would have discovered the host of significant facts upon which Mrs.

Fraser would have been able to give material evidence which would have both lent credence to certain aspects of her husband ’ s testimony, and seriously discredited the complainant ’ s evidence. [ 89 ] By closing his mind to the real value of Lisa Fraser ’ s evidence, and neglecting to take steps to effectively interview her and properly prepare her as a witness, trial counsel seriously prejudiced his client ’ s defence. His expressed concern that Mrs.

Fraser would undoubtedly be questioned by Crown counsel during cross-examination as to the times her husband could have been alone with the complainant (for example, in driving her home after babysitting), such that she would be forced to concede that these incidents could have occurred without her knowledge, can hardly be a serious “ down side ” given the appellant ’ s own testimony that there were occasions when he and the complainant were alone. In my opinion the real risk would be the natural tendency for the jury to wonder why Mrs.

Fraser was not being called as a witness in her husband ’ s defence. [ 90 ] The appellant gave a cell phone to the complainant. The circumstances surrounding it being given to J.M.; the manner and frequency of use; and the content of messages sent from one to the other all became significant during the trial.

It is likely that the appellant ’ s wife had material evidence to give relating to the phone, its use, and its origins which could reasonably be expected to have helped her husband ’ s case. [ 91 ] Had trial counsel properly interviewed the appellant ’ s wife he would have known that her evidence would contradict and could discredit the complainant ’ s testimony in several other material respects including: that she had met the complainant a number of times, and had invited her into their home on occasions when she babysat their children; that she was present when a photograph was taken of the complainant holding the Frasers ’ young baby; and that it was her idea to purchase a cell phone for the complainant and that she and her husband had given that to her as a present. [ 92 ] At the trial, Crown counsel recognized that Mrs.

Fraser was a material witness. This was the very reason the Crown attorneys instructed a police officer to take a formal statement from Mrs. Fraser. Yet the appellant ’ s own lawyer never took the time to interview her, or prepare her as a witness for the defence, somehow caught up in the idea that her value as a witness was negligible, that she “ wouldn ’ t be believed ” , and that her testimony might, in fact, harm her husband ’ s case. After observing Mrs.

Fraser testify at the appeal hearing I saw nothing to indicate that she would be anything other than an impressive witness. [ 93 ] Just as troubling is the fact that the intervenor never asked the Crown to produce a copy of the statement Mrs. Fraser gave to the police during the course of the trial. In fact, when questioned at the appeal hearing the intervenor said that he still had not read Mrs. Fraser ’ s statement to the police.

When asked to say what affidavits forming part of the appellant ’ s fresh evidence application he had read prior to testifying at the appeal, the intervenor ’ s answers were dismissive and incomprehensible: A. I probably read, you know, I may have read them all. I ignored them out of hand. Q. I’m sorry? A.

I ignored them out of hand because they were mostly lies, falsehoods. [ 94 ] If the appellant ’ s trial counsel were intent on “ producing evidence to try and impeach ” the complainant, one would expect that experienced trial counsel would use the preliminary hearing as the means of laying the groundwork for later impeaching the complainant ’ s credibility on collateral matters. Yet a review of the transcript from the preliminary inquiry reveals no such effort.

The intervenor ’ s very brief cross-examination of the complainant consists of 13 double spaced pages which really do nothing to achieve the intervenor ’ s stated objective “ I wanted to highlight any potential inconsistencies in her story. ” Equally, it appears that no attempt was made to pin the complainant down on material facts related to the alleged sexual incidents, or other significant collateral matters upon which the complainant ’ s credibility might later be impugned at trial.

To do that effectively, counsel would have to have already marshalled the case for the defence, by interviewing witnesses, tracking down leads, and preparing the appellant and his witnesses for direct examination and anticipated cross-examination at trial, things Mr. Fraser ’ s trial lawyer never did.

[ 95 ] The preliminary hearing transcript satisfies me that Mr. Fraser ’ s trial counsel was not prepared for the preliminary hearing and, as such, conducted his cross-examination in an ineffective manner which fell well below a reasonable standard.

As a result, the appellant lost the opportunity to garner critical evidence for use at trial which could then have been used for the purposes of discrediting the complainant and other Crown witnesses, and bolstering the defence case. [ 96 ] I need only mention one example to illustrate subject areas where effectively impeaching the complainant ’ s credibility would seem to be elementary. The complainant never mentioned having ever attempted anal sex with the appellant during her lengthy statement to the police in June, 2008, or at the preliminary hearing on February 18, 2009.

The very first time J.M. said anything about having attempted anal sex with the appellant was during the conversation she had with senior Crown attorney Alonzo Wright perhaps a day or two before the trial commenced. The complainant described the attempts she and the appellant had made to “ improvise ” in detail and at several points in her direct examination at trial. Yet this was an experience so painful she said that she could have screamed. And it hurt so much that she could hardly sit down for days afterwards.

One would think that such a memory would be long lasting and described in some detail to the police who were interviewing her, as well as during her testimony at the preliminary hearing. I cannot comprehend why Mr. Fraser ’ s trial counsel never even mentioned it let alone sought to attack the complainant ’ s credibility by subjecting her to a vigorous cross-examination on the subject. [ 97 ] Had the appellant ’ s trial counsel taken the trouble to interview the appellant ’ s aunts, Ms. Viola Fraser and Ms.

Rosella Fraser, he would have uncovered important evidence which could have seriously discredited the complainant. This related to evidence given by the complainant ’ s older sister, M.M. [ 98 ] M.M. testified that J.M. had confided in her that she had been involved in a romantic relationship while in Grade 10. M.M. said her sister told her his name was “ Ethan ” “ a 19-year old black guy from * ” .

Later, when M.M. and the complainant went to their doctor ’ s office for birth control pills she said the doctor asked her sister if she was going to go on the pill or not, and asked her if she was sexually active to which M.M. said the complainant answered in the negative. M.M. said she knew that was not the case and so she questioned her sister privately about it later. It was then that M.M. said her sister admitted that she and “ Ethan ” had had sex and that he had taken the complainant to a clinic in North Preston for a pap test to check for sexually transmitted diseases.

The Crown ’ s theory at trial was that “ Ethan ” was code for Antoine Fraser. [ 99 ] North Preston is a rural community on the eastern edges of the municipality with a rich and proud history as the oldest and largest black community in Canada. The area is populated mainly by African Canadians, many of whom can trace their origins to the immigration of former American slaves during the 18th and 19th centuries. [ 100 ] After retaining the intervenor to represent him at his trial, the appellant provided him with the names of at least 14 witnesses who could testify on his behalf. Among them were his aunts, Ms.

Viola Fraser and Ms. Rosella Fraser. [ 101 ] Viola Fraser is 51 years of age and has been employed as a front desk administrator at the North Preston Community Centre ever since it opened in 2004. Her workstation is the focal point of the Community Centre from which she has a clear and unobstructed view of the only entrance to the Centre as well as the waiting room. Included within the facility is a walk-in medical clinic which is the only medical clinic or doctor ’ s office in either East Preston or North Preston. To access the clinic one has to walk directly in front of Ms. Viola Fraser ’ s workstation.

Part of her duties is to keep track of the number of persons entering the Community Centre and the Wellness Centre. Her affidavit states in part: 8. Included within the Wellness Centre is a walk-in medical clinic which only operates on Thursdays from 10:00 a.m. to 12:00 noon - 1:00 p.m. depending upon when Dr. Lorna J. Carter finishes her last patient. ... 15. I have never seen a white person (male or female) attend at the Wellness Centre to see Dr. Carter since I started working at the Community Centre when it opened in 2004. 16.

I have never seen Antoine Fraser attend at the Community Centre for the purpose of seeing Dr. Carter.

17. I have never seen Antoine Fraser at the Community Centre with a white female for the purpose of attending at the Wellness Centre or for any other purpose. 18. I have never been told by anyone that they saw Antoine Fraser at the Community Centre with a white female for the purpose of attending at the Wellness Centre or for any other purpose. [ 102 ] Ms. Rosella Fraser is 48 years of age. She obtained her Bachelor of Arts degree in Sociology from St. Mary ’ s University in 1984. She has administered all programs at the Community Centre in North Preston since it opened its doors in 2004. Her affidavit states: 7.

Included in the North Preston Community Centre is the Capital Health and Wellness Clinic (“Wellness Clinic”) which is located at the far end of the main hall. The actual office of the Wellness Clinic is comprised of three rooms: a waiting area which includes a reception desk, the doctor’s office and an office for the registered nurse. 8. My sister, Viola Fraser, has also worked at the Community Centre since it opened.

Her workstation is located immediately upon entrance to the Community Centre and from her workstation there is an unobstructed view of the only entrance door and of the main hallway of the Community Centre and the waiting room area of the Wellness Clinic. 9. The Wellness Clinic is staffed by one part-time doctor, Dr. Lorna Carter, who only works there one morning per week (Thursdays) from 10:00 a.m. until approximately 12:00 noon - 1:00 p.m. 10. I know everyone who is employed at the Community Centre and they know me. 11. The door to the Wellness Clinic is always open while the clinic is open.

If the door to the Wellness Clinic is closed - the Wellness Clinic is closed. 12. I have never seen, and I have never heard, of a white person being seen by Dr. Carter at the Wellness Clinic since the Community Centre opened in 2004. 13. I have never seen, or been told, that Antoine Fraser has seen Dr. Carter at the Wellness Clinic. 14. I have never seen, or been told, that Antoine Fraser has been at the Community Centre with a white girl/woman, to see Dr. Carter or for any other reason. [ 103 ] Ms. Viola Fraser also testified at the appeal hearing. Her viva voce evidence was forceful and persuasive.

For example, under cross-examination by counsel for the Crown she said: Q. I take it then there’s a possibility that you would not see a white female if she went to the Wellness Centre? A. If a white person came through the doors of North Preston Community Centre I would have known; everyone in the facility would have known it. ... Q. Okay. But you can’t say a white girl has never gone to the Wellness Centre, can you?

A. No, yeah, I’m saying that a white girl, a white girl and Mr. Fraser did not go to the Wellness Centre. We have white students that come in that work out at the Wellness Centre and they come in and they do greet me and I find out who they are and show them where they need to go. I haven’t seen a white girl with Mr. Fraser. [ 104 ] Had sufficient thought and preparation been given to Mr. Fraser ’ s defence, the significance of the evidence of Viola and Rosella Fraser would have been obvious.

Their testimony could reasonably be expected to have struck a serious blow to the complainant ’ s credibility based on the version of events she had recounted for her sister, M.M., and which M.M. described in her own testimony at trial. Yet trial counsel ’ s failure to interview Viola and Rosella Fraser and realize how important their evidence would be to the defence, meant that a golden opportunity was lost. [ 105 ] Compounding the error was the fact that the intervenor did nothing to prepare his client for trial. As Mr. Fraser states in his affidavit: 57.

Prior to my taking the stand to testify in my own defence I never met with Mr. Scaravelli to discuss the specifics of my testimony nor did he discuss with me any of the areas of the evidence which I may be cross-examined on by the Crown. ... 62. Mr. Scaravelli did not consult with me prior to making this statement in open Court nor was it my understanding that no further defence evidence would be called. To the contrary, my family and I had arranged for Reverend Desmond to be present for Mr. Scaravelli to speak to and he was, to the best of my knowledge, still in the Courthouse.

I also assumed there were other defence witnesses that Mr. Scaravelli had lined up to testify from the list of witnesses I had provided to him. Moreover, I expected that Lisa would be testifying. [ 106 ] When questioned on his affidavit at the appeal hearing, the intervenor was asked: Q. You knew the Crown was going to attack him, him being Antoine Fraser, in regards to anything and everything they could ... A. Oh yeah, well, he - I was convinced that Antoine Fraser would hold up because he - he’s an educated man, he denied having any relations with this person. He said she was lying about everything.

I had no doubt that he would hold up. ... [ 107 ] The appellant entrusted his case to the care of the intervenor. Sadly, that trust was misplaced. Meaningful communications and updates never happened.

During the 15 months that he acted for the appellant the intervenor sent his client one letter — it contained but one sentence which simply confirmed the date of trial. [ 108 ] This lack of proper preparation or effective legal representation is reinforced by another troubling example. [ 109 ] The intervenor filed an application pursuant to s. 276 of the Criminal Code asking for a determination of whether evidence of the complainant ’ s prior sexual activity (with her father) other than the sexual activity that formed the subject-matter of the charge, would be admissible under s. 276(2) .

The defence alleged that the complainant had not been truthful in accusing the appellant when she gave her statement to the police in June, 2008 and that the reason she had lied to the police was that she was attempting to protect her father whom she said had molested her as a young girl.

This, so the appellant argued, was relevant, and highly probative evidence which ought to be admitted to enable him to challenge the complainant ’ s credibility both with respect to what she had told the police as well as her high school principal a few days before the police became involved. [ 110 ] Assuming, without deciding, that such an application was necessary in order to challenge the complainant at trial on these particular collateral issues, its handling was flawed from the beginning.

[ 111 ] The Notice of Application filed by the intervenor on behalf of the appellant on November 20, 2009, begins: 1. The Applicant is charged with sexual assault contrary to s. 153 (

a) of the Criminal Code ... [ 112 ] This is wrong. The appellant stood charged: That he, between the 1st day of January 2007 and the 1st day of July 2008, at or near Eastern Passage in the County of Halifax, Province of Nova Scotia, being in a position of trust or authority towards [J.M.], a young person, did, for a sexual purpose, touch directly the body of [J.M.] with a part of his body, to wit, his penis, contrary to

section 151 (

a) of the Criminal Code . [ 113 ] When cross-examined at the appeal hearing the intervenor admitted that he had borrowed a precedent from someone and failed to revise it to properly reflect his client ’ s circumstances in this case. Even more startling is the fact that the intervenor had his client swear a detailed affidavit in support of the application which contained a great deal of information which could later be used (and, in fact, was used) very effectively by the Crown during its cross-examination of the appellant during the voir dire , and at his trial.

The fact that the intervenor never prepared the appellant for trial or explained what to expect by way of cross-examination is troubling enough. Effectively forcing his client to “ answer ” the detailed information contained in his affidavit filed in support of the s. 276.1 application made things worse. [ 114 ] The intervenor did not seem to appreciate that all of this could have been avoided by simply filing a solicitor ’ s affidavit from one of the associates in his own office.

It would be a simple step to attach as exhibits suitable references from the Crown ’ s disclosure package and provide the court with more than enough information to establish the purpose and necessity of the s. 276 application. The evidence to support the application was all easily found in the materials provided with the Crown ’ s disclosure. Even a cursory reading of the transcript of the appellant ’ s evidence both during the voir dire and at trial shows how vulnerable he appeared to be when challenged regarding the information contained in his affidavit.

Such a poor showing could have been easily avoided with some careful thought and adequate preparation. [ 115 ] One last example will serve to illustrate the harm done by trial counsel ’ s ineffective representation. [ 116 ] As noted earlier in these reasons, it was during a break in the proceedings on the first day of the appellant ’ s trial when the intervenor told him, in the presence of his mother, father and wife, that he had just been advised by the Crown that J.M. ’ s story had changed. She was now making other allegations and providing further details. I am satisfied Mr.

Fraser asked his lawyer whether they could get full particulars and have time to review it, but that he was told the trial had already started and there was nothing they could do about it. When pressed to explain why he had not sought an adjournment, the intervenor said his client “ wanted to get this over with and behind him ” . I suspect that is true of anyone charged with a criminal offence who faces the prospect of a trial.

But it is hardly an answer as to why an adjournment on such a serious matter was not requested, or at the very least, meaningfully discussed by the intervenor with his client. [ 117 ] I am also satisfied that the only details passed along by the intervenor with respect to J.M. ’ s new allegations were that she was now alleging attempted anal sex, and oral sex in the classroom.

The appellant did not become aware of the full extent of the complainant ’ s new allegations until he read Alonzo Wright ’ s correspondence to his appeal counsel, the year following his conviction. [ 118 ] I accept the appellant ’ s evidence that had he been informed by the intervenor of the full extent of the allegations, and had the intervenor explained to him his options including his right to request an adjournment, the appellant would have asked the intervenor to request an adjournment of his trial. [ 119 ] I accept Mr. and Mrs.

Fraser ’ s evidence that they became so alarmed by the poor legal representation they were getting that Mrs. Fraser was prompted to call Mr. Josh Arnold, Q.C. to seek his advice as to what options they might have. Mr. Arnold told her that if they were to dismiss the intervenor as their lawyer in mid-trial, there was a chance the trial judge might oblige Mr. Fraser to carry on alone and without counsel. They decided the risk was too great and that they had no choice but to soldier on and see things through to the end. Following his conviction, the Fraser family retained Mr.

Arnold for the sentencing hearing and to launch an appeal from conviction. Messrs. Garson and Arnold soon initiated contact with the intervenor and the Crown attorney so as to establish the facts upon which their

two principal grounds of appeal could be supported. [120] While it has not been necessary for me to comment upon each of the complaints levelled by the appellant, the few examples Ihave addressed clearly establish that trial counsel’s actions, omissions, and choices could not have been the result of reasonablepreparation or professional judgment. Their cascading effect took away the appellant’s chance for a fair trial. As in R. v. J.B., 2011ONCA 404: [6] ... the cumulative effect of the failures of counsel undermined the reliability of the verdict and resulted in a miscarriage of justice.

Second Ground of Appeal: Crown Disclosure [121] Mr. Fraser’s trial began on Monday, December 7, 2009. At some point shortly before the trial, Mr. Alonzo Wright telephonedthe complainant at her residence in * where she was living at the time to find out how she was doing, discuss her travel to Nova Scotia,and review her anticipated testimony.

During the course of that discussion, the complainant made a number of other allegations againstthe appellant and provided considerable detail concerning their sexual relationship and the occasions she said they spent together. [122] The evidence as to precisely when and how the Crown attorney communicated this information to the intervenor is at variancein some respects. Whatever form it took, I am satisfied that Mr.

Wright conveyed that information to the appellant’s lawyer at hisearliest opportunity. [123] While one cannot say for certain whether that took the form of an initial phone call over the weekend, there can be little doubtthat at a break in the proceedings on the morning of trial, Mr. Wright relayed all of the details of his conversation with J.M., to theintervenor. [124] Whatever the intervenor did or did not do with that information is a matter between him and his client. Any prejudice that aroseas a result cannot be laid at the Crown’s feet. [125] Mr. Wright did all the law required.

He fulfilled the Crown’s disclosure obligations which “are ongoing, and persist throughoutthe trial process”. R. v. Dixon, (SCC), [1998] 1 S.C.R. 244 at ¶ 55. [126] I reach the same conclusion with respect to the appellant’s complaint that the Crown “failed” to provide the defence with thestatement it obtained from his wife, Lisa, during the trial. This point was not seriously argued by counsel for the appellant on appeal. Itis obvious that the intervenor was well aware of the fact that the police had obtained an audiotaped statement from Mrs.

Fraser but hemade it very clear that he did not wish to be provided with a copy. In fact, when questioned at the appeal hearing, the intervenor testifiedthat he has still refused to read it, even though it was attached to the affidavit Mrs. Fraser filed on the fresh evidence application. Whenquestioned by Mr. Garson at the hearing, the intervenor said: Q. You just told us a while ago you read Lisa Fraser’s affidavit. A. ... I read her affidavit, but I didn’t read the statement she gave to the police. Q. Never read it yet. A. No. Q. Why is that?

A. Because I was not going to call her as a witness. There was no upside to call her as a witness, only a downside. ... Q. No. What I was asking you, sir, was, before you came here today, had you read a transcript of the police statement of Lisa Fraser? A. No. ... Q. You never read it. A. No. Q. Does it matter to you what she said in there? A. No. Q. Why is that? A. Because I talked to her enough really to know that I would not be putting her on the stand. There was no upside to it, there was no advantage to it, only a huge disadvantage.

In my opinion. [ 127 ] In his correspondence responding to specific questions posed by Mr. Arnold, Mr. Wright explained that the intervenor never asked for a copy of the statement and that: Counsel was advised by Crown Counsel that a statement had been taken. Counsel made it clear in the presence of the accused that she would not be called by the defence no matter what she said in her statement. [ 128 ] Given these circumstances, I am not prepared to conclude that Mr. Wright ought to have forced himself upon the intervenor by insisting that he accept a copy of Mrs.

Fraser ’ s statement despite his explicit disinterest in receiving a copy. [ 129 ] For all of these reasons, this ground of appeal is dismissed. Conclusion [ 130 ] There is no pleasure in writing a decision like this one. The reputations of the complainant, the appellant, and the intervenor have all been tarnished by the facts of this case. A new trial will once again subject the parties to the cold, impersonal scrutiny of our criminal justice system.

[ 131 ] Mr. Fraser did not receive a fair trial. The legal representation he obtained fell far short of the mark reasonably expected of any defence counsel. His constitutional right to make full answer and defence was compromised. A miscarriage of justice occurred. The verdict is unsafe and must be set aside.

I would allow the appeal, overturn the conviction and order a new trial. [ 132 ] To give effect to this result, it is ordered that the appellant be released pending his new trial and that in the interim he continue to be bound by the terms of the Recognizance and Order of this Court dated June 9, 2010, until such time as he is brought before a lower court for election and plea. In that regard it is to be recalled that at the appeal hearing Mr.

Scott, counsel for the respondent, confirmed that the Crown would consent to whatever choice of forum was elected by the appellant for his next trial, pursuant to the provisions of s. 686(5) and (5.1) of the Criminal Code . Saunders, J.A. Concurred in: Oland, J.A. Beveridge, J.A.