The Defence Toolkit – November 28, 2020

This week’s top three summaries: R v Cook, 2020 ONCA 731: bad #character & #expert evidence, R v Bean, 2020 ABCA 409: ability to pay #restitution and R v DA, 2020 ONCA 738: #ineffective assistance re accused testimony

R v Cook, 2020 ONCA 731

[November 17, 2020] Bad Character Evidence - Judge's Overarching Role to Prevent Introduction - Sekhon Expert Violation [Reasons by Gary Trotter J.A. with David Brown J.A. and David Paciocco J.A. concurring] 

AUTHOR’S NOTE: In practice, bad character evidence is not difficult to identify and where it is an aberration from other evidence it is usually controlled successfully in a courtroom. The cases that have to most difficulty are those where bad character evidence so infects the whole of the evidence that it becomes truly difficult for the parties to identify it.  The facts in this case were such that particular attention had to be paid to the pervasive bad character evidence that would ultimately prevent a fair trial. The Crown was either sleeping at the wheel or was hoping to benefit from the prejudice the evidence would engender in a jury; the defence appears to have been little help in preventing the introduction of the evidence. However, ultimately Justice Trotter laid responsibility with the trial judge - they have an obligation to keep bad character evidence out in the first place.

Also the possession for the purpose of trafficking expert testified by relating personal anecdotal evidence to the ultimate question in violation of Sekhon. 

Overview

[1] The appellant was convicted of possession of anabolic steroids for the purpose of trafficking (Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), s. 5(2)), possession of cocaine for the purpose of trafficking (CDSA, s. 5(2)), and two counts of possession of the proceeds of crime (Criminal Code, R.S.C. 1985, c. C-46, s. 354(1)(a)). The appellant was sentenced to 4 ½ years’ imprisonment, less 20 days credit for time served in pre-sentence custody.

[2] The appellant appeals his convictions and sentence. He raises a number of grounds of appeal against his convictions, the main one being that the trial judge erred in admitting and then failing to contain prejudicial bad character evidence related to his apparent association with the Hell’s Angels motorcycle club. In a similar vein, the appellant argues that certain intercepted communications relied upon by the Crown constituted bad character evidence that portrayed him as someone who is well-versed in the intricacies of the drug world and the criminal justice system. The appellant also submits that the testimony of a Crown witness strayed beyond the proper bounds of opinion evidence, contravening the principles in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272.

[4] In his final instructions, the trial judge gave the jury a very brief instruction not to use this bad character evidence to infer that the appellant had a propensity to commit the offences that he was charged with. However, this warning did not remedy the unfairness that suffused this trial.

[5] This unfairness was compounded by the anecdotal testimony of a police officer, which exceeded the proper bounds of opinion evidence and culminated in a subtle reversal of the burden of proof on the steroids charge. The trial judge did not instruct the jury to disregard this evidence.

Factual Overview

[7]  ... The investigation involved the following units of the Ontario Provincial Police: the Organized Crime Enforcement Bureau, the Biker Enforcement Unit, and the Asset Forfeiture Unit. As a result of Crown questioning, many of the officers testified that they were assigned to these specialized units when they were investigating the appellant. As the trial continued, it became readily apparent that the appellant was a target of this broader investigation into bikers and organized crime.

[8] The police obtained warrants to search the appellant’s and his father’s homes. At the appellant’s home, the police discovered large quantities of steroids. They also found a canister containing five ounces of cocaine buried under snow about 100 metres behind the appellant’s home. The Crown alleged that the appellant possessed the steroids and cocaine for the purpose of trafficking.

[9] The police seized roughly $36,000 in Canadian currency, bundled in various amounts, from the appellant’s home. They discovered another $55,000 at his father’s home. The Crown alleged that all of the cash was proceeds of crime.

The Hells Angels Evidence

[12] The search warrant for the appellant’s home authorized the police to seize clothing and paraphernalia associated with the “13 Crew Motorcycle Club”, an entity associated with the Hells Angels. The police took many photographs of this clothing and paraphernalia inside the appellant’s house. The trial judge allowed the Crown to adduce these photographs as exhibits.

[13] Throughout the trial, the Crown repeatedly tendered evidence suggesting that the appellant was associated with the Hells Angels. In fact, two officers provided detailed testimony about the surveillance of the appellant at a meeting with a known member of the Hells Angels.

[14] There was no singular piece of evidence that undermined the fairness of this trial. Rather, it was the cumulative impact of many pieces of evidence that produced this result. As the following sections will demonstrate, the suggestion repeatedly presented to the jury was obvious: the appellant was formally associated with a notorious criminal organization, the Hells Angels. This association led to the inescapable inference that, by virtue of his involvement with a criminal subculture, the appellant was the type of person who was more likely to commit the offences before the court.

Biker Clothing

[19] Despite the trial judge’s caution that Staff Sgt. Dobler should refer to the Nomads as a “motorcycle club” instead of the Hells Angels, Detective Constable Leonard, who testified the next day, said that he found “Hells Angels support clothing” in the appellant’s home: namely, a black leather vest with the words “13 Crew” embroidered on it.

[20] In his cross examination of D.C. Leonard, defence counsel sought to soften the impact of this evidence, but he ended up exacerbating the situation. In particular, D.C. Leonard confirmed that: (i) the appellant “was a member of the 13 Crew”’ (ii) the “13 Crew is a support club of the Hells Angels”; and (iii) the officer’s superiors had told him to “seize any outlaw motorcycle gang affiliated clothing”.

[21] Another witness, D.C. Kettyle, followed suit. He testified about the same leather vest that D.C. Leonard had mentioned in his testimony. He said he observed “a 13 Crew, outlaw motorcycle vest hanging on the door of Mr. Cook’s bedroom…that said Ottawa Chapter at the bottom” and “some Hells Angels support wear hanging on a closet door in that main bedroom.”

[22] Evidently, the trial judge’s ruling on the voir dire was not communicated to D.C. Leonard or D.C. Kettlyle. However, there was no objection and the trial judge did not provide any mid-trial instructions to the jury regarding this evidence.

Reference to the Overall Project

[23] ... As the trial unfolded, it became clear why so many officers and multiple agencies specialized in organized crime were involved in this case: the appellant was a target in Project Batlow. The officers also alluded to the wide scope of that investigation, testifying that there were several teams of investigators in different regions, and numerous search warrants, surveillance operations, and telephone intercepts. Much of this evidence was unrelated to the straightforward case against the appellant.

[24] Eventually, defence counsel asked the court for a mid-trial instruction to militate against the possibility that the jury would “see [the appellant] as some Province-wide mobster who is connected to God-knows-who”. The Crown resisted, contending that “[t]hese are just the facts that there were multiple surveillance teams surveilling multiple people ... Those are the facts of this case”.

[25] The trial judge accepted the Crown’s position that references to the broader investigation was “just the context” and one could not re-write history to obscure the fact that the appellant “[hung] around with these guys”. Nonetheless, he acceded to the defence request and provided the following mid-trial instruction:

...it’s in the context of a much broader investigation. You shouldn’t draw any inferences against him unless they relate to the specifics of these offences.

[Emphasis added.]

[26] This warning was not repeated in the trial judge’s final instructions.

Surveillance Evidence

[29] First, two officers testified about a meeting between the appellant and three other individuals in a parking lot. The officers described one of the individuals, Mr. Clairoux, as a “full patch member of the Hells Angels” and a “known criminal”. One officer further testified that he recognized both Mr. Cook and Mr. Clairoux from the “target package” that he received at the commencement of Project Batlow.

[30] During their evidence, the officers recounted this meeting in detail. Mr. Clairoux was “wearing a black and white leather vest with Hells Angels patches on the back.” The appellant walked behind Mr. Clairoux “like a subordinate, not by his side like an equal”. An officer commented that one of the individuals seemed to be watching vehicles as they passed by the parking lot. He made the following observation: “…through the experience I’ve gathered through those 17 years in policing, I believe that he was keeping watch because they were involved in something that was illegal”. The Crown acknowledged that this surveillance evidence could be interpreted as “relating to gang membership” but again, this was just part of the facts of this case.

[31] The second relevant aspect of the surveillance evidence pertains to what was ultimately provided to the jury for their deliberations. When the officers testified, they made reference to surveillance logs. The Crown entered an exhibit book containing 13 of these logs. Multiple pages of the surveillance reports displayed the Biker Enforcement Unit’s name, and its logo – a motorcycle wheel in handcuffs.

The Jury Instruction

[34] The trial judge’s instructions concerning the Hell’s Angels evidence was not given until the very end of his charge, in the following brief passage:

Oh, the last thing. Just out of sort [of] general comments, the association with the motorcycle club Hells Angels, there is clothing et cetera found at the house. He met a guy in the parking lot, kind of a friendly greeting. You are not allowed to use that evidence to assume he is guilty of any of these offences, it is context only, it is not safe to make an assumption that he is the kind of person to commit these offences just because of whatever association he had with a club like that. So, that goes over the acceptable use of that. It is just context of that type of evidence. [Emphasis added.]

[35] Defence counsel did not object to the adequacy of this instruction.

The Law: Bad Character Evidence

[39] In his leading judgment in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, Binnie J. said, at para. 72: “Discreditable disposition or character evidence, at large, creates nothing but ‘moral prejudice’ and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person.” See also R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 44, per Moldaver J. This is precisely what happened in this case – the Crown attempted to ease its burden by supplementing what appeared to be a formidable case with irrelevant and gratuitous bad character evidence.

[40] Evidence of gang association, affiliation, or membership is bad character evidence. It is presumptively inadmissible: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 90. It impels the prohibited inference that the accused is the type of person who is likely to have committed the offence. This type of evidence is particularly dangerous because it involves “unrelated criminal activity”: R. v. Riley, 2017 ONCA 650, 137 O.R. (3d) 1, at para. 21. More generally, it may also insinuate that the accused embraces a positive attitude towards the criminal lifestyle.

[41] Although evidence of gang affiliation is presumptively inadmissible, it has a legitimate place in some trials. As Strathy C.J.O. explained in Phan, at para. 91:

While evidence of gang membership can be highly prejudicial, it may be relevant for a variety of purposes. Like all bad character evidence, it may be admissible on an exceptional basis where its probative value outweighs its prejudicial effect. It may be admissible to provide context or narrative, to establish animus or motive, or to establish the accused's state of mind or intention, among other purposes. The case law is replete with the admission of gang association evidence for these and other purposes. [Emphasis added.]

[43] The Hells Angels evidence should never have been admitted at this trial. It was not relevant to any of the issues the jury was required to decide: (1) whether the appellant possessed the steroids for the purpose of trafficking; (2) whether the appellant was in possession of the cocaine that was seized behind his backyard; and (3) whether the cash seized from the appellant’s and his father’s residences was derived from the commission of crime (i.e., the drug offences).

Application

Biker Clothing

[45] The Crown adduced at least 10 photos that only depicted biker clothing. These photos of the biker regalia did not assist in demonstrating where police found relevant seized items (i.e., the steroids, cocaine, and cash). They had no bearing on the issues of possession or the purpose of possession. Nothing was found inside the clothing that assisted with any live issue at trial. The appellant’s possession of biker clothing did not advance these issues in any way other than stirring the prohibited inference that the appellant was a bad person and therefore more likely to have committed the offences.

[47] Moreover, this was not just “clothing.” These objects were the trappings and regalia of a notorious criminal organization: R. v. Drecic, 2011 ONCA 118, 276 O.A.C. 198, at para. 8 and R. v. Bodenstein, 2011 ONCA 737, at para. 6. As the ill-fated cross-examination of D.C. Leonard demonstrated, these items cannot be obtained online; they must be earned. As he explained, the Club only allows its members or affiliates to wear its clothing. Transgressions against this policy are “dealt with…by the club”. Simply put, these items are well known symbols of crime in our society that are not readily attainable by non-members of the Hells Angels.

[52] No thought seems to have been given to simply not showing the jury the photographs of the biker paraphernalia (i.e., removing the offending photos from the book of photos entered as an exhibit). Again, this seems to have been driven by the Crown’s assumption that photographs taken as part of an investigation must be adduced as evidence. But the vetting of evidence is commonplace in jury trials, designed to prevent the jury from being distracted by irrelevant evidence, or inflamed by evidence that is prejudicial.

[55] It might be said that the trial judge’s decision to refer to the Nomads as “the Ottawa Chapter of a motorcycle club” was a form of vetting. But realistically, at least some of the jurors would have known that this apparel is worn by bikers associated with crime (as opposed to bikers of the weekend, recreational type). If this was not already obvious when the photographs were admitted, it would have become so as this evidence accumulated throughout the trial.

Project Evidence

[59] The inference flowing from the fact that the appellant was a target in Project Batlow is abundantly clear: he was a player in a network of organized crime that was the subject of a province-wide investigation. It is undebatable that this was highly prejudicial bad character evidence. The Crown should have been prohibited from testimony from officers about the scope and nature of the broader investigation.

Surveillance Evidence

[61] The respondent submits that this evidence was legitimately elicited to rebut the appellant’s claim that his income was derived from legitimate means.

[62] The police surveilled the appellant for over 13 days. There was other, less prejudicial, surveillance footage of the appellant’s day-to-day activities that the Crown could have relied upon to make its point. This hour-long meeting with bikers was unnecessary to its case. Yet, the Crown found it necessary to question two officers about it in great detail, eliciting details that were highly prejudicial and outweighed any probative value this evidence might have had.

The Instruction

[64] I repeat the totality of the trial judge’s instructions on the bad character evidence discussed so far:

Oh, the last thing. Just out of sort [of] general comments, the association with the motorcycle club Hells Angels, there is clothing et cetera found at the house. He met a guy in the parking lot, kind of a friendly greeting. You are not allowed to use that evidence to assume he is guilty of any of these offences, it is context only, it is not safe to make an assumption that he is the kind of person to commit these offences just because of whatever association he had with a club like that. So, that goes over the acceptable use of that. It is just context of that type of evidence. [Emphasis added.]

[65] Whether any instruction could have “un-rung” the bell that was sounding throughout the trial, as the appellant’s counsel put it, this instruction was an inadequate response to the bad character evidence that had accumulated. The jury should have been warned in strong terms not to use the evidence in question for any prohibited purpose. The trial judge’s characterization of the evidence as “context only” was vague, and it did not remove its prejudicial impact. There was no need for this “context” in the first place and the jury should not have been permitted to consider the allegations facing the appellant against a backdrop of organized crime.

Intercepted Evidence

[73] In addition to the Hells Angels evidence, the appellant submits that the trial judge erred in admitting the evidence of an intercepted conversation between the appellant and Tina, a woman with whom he was in a relationship. He submits that this intercept was rife with bad character evidence, tending to suggest that the appellant: had close connections to the drug world; had accumulated a wealth of knowledge of the inner-workings of the criminal justice system; and could draw on that knowledge to “game” the system.

[76] In further discussions about people facing drug charges, the appellant referred to a man and a woman and said, "Yeah but she buried shit on his side didn't she?" Tina responded: "She did last time too.” As I will return to shortly, the Crown seized on this passage to infer that the buried cocaine cannister was indeed in the appellant’s possession.

[79] The Crown relied on this evidence to defeat the appellant's defence to the cocaine charge. After quoting the "buried shit on his side" excerpt, the Crown said: "Very curious comment by Blake Cook… in this case when we're dealing with a buried canister of cocaine."

[87] The intercepted conversation suggested that the appellant was knowledgeable of fentanyl, a notoriously dangerous drug that had nothing to do with the charges he faced. It painted the appellant as someone with broad knowledge of the criminal justice system. As with the Hells Angels evidence, the conversation portrayed the appellant as a person of bad character who associates with other criminals, in this instance Tina.[3] This type of guilt-by-association evidence is inadmissible. As Doherty J.A. said in R. v. Ejiofor, (2002) 2002 CanLII 19541 (ON CA), 156 O.A.C. 147 (C.A.), at para. 8: "People can only be convicted for what they do, not for the company they keep." Similarly, in R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, Watt J.A. said, at para. 58: “[W]e insist that guilt be proven by evidence of what an accused did and said, not because of the type of  person the accused is, or the lifestyle he or she chooses.”

[89] I would also give effect to this ground of appeal.

The Sekhon Violation

[92] When the police executed the search warrant at the appellant’s home, they seized 1,721 steroid pills and 36 vials of liquid steroids. At trial, the Crown essentially conceded that 721 steroid pills and 16 vials of liquid steroids could have been for personal use. The question was whether the remaining 1000 pills and 20 vials were possessed for personal use, or for the purposes of trafficking.

[93] In the course of D.C. Kubels’ testimony, the Crown adduced the following evidence:

Q. So in your experience sir, have you seen people – my word – stockpile pills to use over a year?

A. No, I have not, not for personal use. ...

Q. And in your experience sir, have you seen someone stockpile 20 vials of those substances for personal use?

A. No, I have never seen that with a personal use.

[94] The trial judge reviewed this evidence in his charge to the jury. He said: “[D.C. Kubels] examined all the evidence about what had been recovered and he said that he had never seen anyone stockpile that much for personal use.”

Application

[100] The impugned evidence in Sekhon foundered on the relevance and necessity criteria. Moldaver J. held that, although the evidence may have been logically relevant, it was not legally relevant “because the guilt or innocence of accused persons that [the expert] had encountered in the past is legally irrelevant to the guilt or innocence of Mr. Sekhon”. He also noted that: “[A] fundamental tenet of our criminal justice system is that the guilt of an accused cannot be determined by reference to the guilt of other, unrelated accused persons”: at para. 49. As Watt J.A. explained in R. v. Burnett, 2018 ONCA 790, 367 C.C.C. (3d) 65, at para. 75: “What Sekhon enjoins is evidence that invites a trier of fact to reason from a generalized conclusion based on prior experience to a specific state of mind of the person charged.”

This type of anecdotal evidence would appear to require the accused to somehow prove that, regardless of a particular expert’s past experience, the accused’s situation is different. Such a result is contrary to another fundamental tenet of our criminal justice system — that it is the Crown that bears the burden of proving the mens rea of an offence beyond a reasonable doubt.

[103] In Sekhon, as in the case at hand, the evidence of the experts focused on the mens rea of the drug offences. In Sekhon, the officer testified about the knowledge of a courier; in this case, with knowledge conceded, the officer testified about the purpose for which the steroids were possessed. Courts have applied Sekhon in this latter context to find similar anecdotal evidence inadmissible. For example, in R. v. Chung, 2018 SKCA 70, the court held that it was improper for an officer to give an opinion that he had never seen a cocaine user possess two ounces just for personal use. In R. v. Tennant, 2019 ONCA 264, at para. 3, this court held that an expert’s statement – “I haven’t encountered users yet that would have that much heroin” – was improper.

[107] That is what happened in this case. Almost imperceptibly, the opinion evidence crossed the line into impermissible territory. In the moment, it is understandable that no one noticed. However, it ought to have been caught when it came time to instruct the jury. Instead, the mistake was repeated. I accept the appellant’s submission that this testimony compromised the appellant’s right to a fair trial on the steroids count by requiring him to “somehow prove that, regardless of a particular expert’s experience, [his] situation is different”: Sekhon, at para. 50.

[108] I would allow the appeal on this ground.

R v Bean, 2020 ABCA 409

[November 19, 2020] Sentencing - Restitution and the Ability to Pay [Jack Watson, Elizabeth Hughes, Kevin Feehan JJ.A.]

AUTHOR’S NOTE: The ability to pay restitution had been removed by the former federal government from statutory principles that would prevent a restitution order. However, this decision confirms that consideration of the means of the offender to pay restitution must still be considered before imposing an impossible to meet resitution payment. 

Overview

[1] Mr. Bean pled guilty to criminal flight and dangerous driving. He was sentenced to three years for criminal flight and six months for dangerous driving to be served concurrently, less pretrial custody which left 522 days to be served. The sentencing judge also imposed a five-year driving prohibition and a restitution order under s 738 of the Criminal Code in the amount of $50,094.44.

The Offences

[3] On the evening of December 12, 2018, over a period of approximately 35 to 40 minutes, Mr. Bean was observed driving at speeds well in excess of the speed limit, into busy and oncoming traffic, and through red lights. He continued driving while being chased by police vehicles with emergency lights and sirens blaring, as well as being pursued by the Air 1 Helicopter.

[4] Eventually police successfully deployed a spike stick, which caused Mr. Bean’s side tires to deflate. But he continued to drive the truck at high speeds on its sparking steel rims. Police then performed a Precision Immobilization Technique (“PIT”) manoeuvre, which involves a police vehicle deliberately colliding with a vehicle’s side to force it to spin out of control and come to a stop. Officers attempted the PIT manoeuvre twice on Mr. Bean’s truck without success. On the third attempt, Mr. Bean’s truck came to rest. At that point, other police vehicles boxed in the truck.

The Sentencing Decision

[6] The Crown sought a sentence of three-and-a-half to four years (six months for dangerous driving and three to three-and-a-half years for flight), a five-year driving prohibition, and a restitution order of $50,094.44 for the damage to the Edmonton Police Service’s vehicles.

[10] There was very little discussion of the restitution order, but the relevant exchange between Mr. Bean’s counsel and the sentencing judge on this issue is as follows:

…Sir, apparently there's $50,000 in invoices and whatnot. I mean the only comment I would make is one, I think that’s a terrible burden to place on Mr. Bean considering how young he is. The second would be I would be under the assumption that there would be some amount covered by insurance and that that would not be the actual amount paid out by the Edmonton Police Service, and without some type of additional information from the Crown I would submit, Sir, that we shouldn't be moving forward with any type of restitution order.

THE COURT: Well, isn’t it quite possible, though, that the insurer would then be subrogated to the position of the police? In other words, yes, they may have paid out a great deal of that but then they are entitled to go and collect it from Mr. Bean himself. So if the City gets it, they won’t -- I can almost assure you that the insurer would come right after the City and say we want it back or at least that amount back. I am going to grant the restitution order.

[11] Mr. Bean appeals the restitution order only.

Analysis

[15] A restitution order is part of a sentence: R v Castro, 2010 ONCA 718 at para 22. As such, the sentencing principles set out in Part XXIII of the Criminal Code apply.

[16] ... A restitution order is discretionary: R v Johnson, 2010 ABCA 392 at para 26; Castro at para 21.

[17] Castro, in considering s 738 said as follows at paras 23-24:

A restitution order should not be made as a mechanical afterthought to a sentence of imprisonment: R. v. Siemens, 1999 CanLII 18651 (MB CA), [1999] M.J. No. 285, 136 C.C.C. (3d) 353 (C.A.), at para. 10. Care must be taken not to simply add a restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle.

The starting point for any discussion of the objectives and factors that inform a judge's exercise of discretion in making a restitution order is the Supreme Court of Canada's decision in R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940, [1978] S.C.J. No. 48. While the decision deals with predecessor legislation, the decision of Laskin C.J.C. nevertheless serves as a blueprint for the considerations to be taken into account in making a restitution order under s. 738(1). These considerations were summarized by Labrosse J.A. in Devgan, at para. 26, as part of a non-exhaustive list:

In Zelensky, Laskin C.J. identified certain objectives and factors that relate to the application of s. 725(1). These considerations have been expanded upon in subsequent cases. Below, I have consolidated these objectives and factors, all of which are relevant to the issue of what constitutes a proper exercise of discretion for the purpose of s. 725(1).

1.    An order for compensation should be made with restraint and caution;

2.    The concept of compensation is essential to the sentencing process:

3.      it emphasizes the sanction imposed upon the offender;

4.    it makes the accused responsible for making restitution to the victim;

iii.   it prevents the accused from profiting from crime; and

1. it provides a convenient, rapid and inexpensive means of recovery for the victim;
2.    A sentencing judge should consider:
3.      the purpose of the aggrieved person in invoking s. 725(1);
4.    whether civil proceedings have been initiated and are being pursued; and

iii.   the means of the offender.

4.    A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims;

5.    A compensation order is not the appropriate mechanism to unravel involved commercial transactions;

6.    A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation;

7.    A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;

8.    Any serious contest on legal or factual issues should signal a denial of recourse to an order;

9.    Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and

10. A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.

[19] In 2015, s 739.1 was added to the Criminal Code. It provides: “the offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.”

[20] R v Simoneau, 2017 QCCA 1382 considered s 739.1 in an appeal of sentence. The court found that the section codified the existing law that while ability to pay is always a relevant factor to consider in making a restitution order, it is not necessarily determinative. The court also said that ability to pay includes present ability to pay as well as future ability. [Emphasis by Author]

[21] Unfortunately, counsel provided no assistance to the sentencing judge on the relevant factors to consider in making a restitution order and, as a result, restitution was dealt with as an afterthought. This is an error in principle which has three aspects and which error affected the outcome within the meaning of R v Lacasse, 2015 SCC 64 at paras 11, 16 and 43.

[22] The first aspect of the reversible error is that the sentencing judge was not provided with an adequate means for determination of the actual eligible loss. Crown counsel provided him with an overall figure and then said “I don't have a physical copy of it, but the amount that Edmonton Police is seeking for the damage caused to their vehicles is $50,094.44”. The submissions of Mr. Bean’s trial counsel were to the effect that the amount was derived from “invoices and what not”. In effect, the sentencing judge was presented with a conclusion, not a case, as to the amount of the eligible loss. He accepted that conclusion without receiving evidence.

[23] The second aspect of the reversible error is that the sentencing judge was provided no information with respect to Mr. Bean’s ability to pay and it was obvious that he was going to be in prison for some period of time, he had health problems, and had been seriously injured in the crash and its aftermath. While ability to pay “does not prevent” a court from making an order under ss 738 or 739 of the Criminal Code, ability to pay remains a relevant consideration as to the terms and timing of such an order. For example, the record is silent on what type of employment, if any, Mr. Bean has had in the past, nor what his future ability to pay is, and whether that ability comes from employment or other sources.

[24] The third aspect of the reversible error is that there was, on the evidence, a live question as to accountability for the loss. The sentencing judge appears to have taken as a given that Mr. Bean should be considered 100% responsible for the loss. The damage to the police vehicles was said to have been caused by the efforts to stop his driving. On the findings of the sentencing judge, the police were justified in doing what they did, but that did not automatically and necessarily transfer into a conclusion about causation for the complete loss; as noted above, a sentencing hearing is not the proper forum to resolve serious issues of a legal or factual nature.

[25] As can be seen from this summary, the aspects of error share the characteristic that ultimately the lack of an adequate hearing creates more problems than it solves. It may well be that, in the end, the proper amount of compensation was ordered. But as Oliver Wendell Holmes Jr said, “Men must turn square corners when they deal with the Government.” One would hope that the Government’s approach be the same in its dealings even with convicts.

[26] The appeal is allowed and the restitution order is quashed.

R v D.A., 2020 ONCA 738 

[November 19, 2020] Ineffective Assistance of Counsel - Failure to Prepare and Explain Benefits of Testifying [Reasons by Pardu J.A. with Doherty and C.W. Hourigan JJ.A. Concurring]

AUTHOR’S NOTE: Preparing and advising an accused about the possibility of testifying is one of the essential jobs of a defence lawyer. It cannot be glossed over and notes should be kept confirming the contents of such preparation.  This is one the easiest ways of failing to live up to competent representation.

Overview

[1] The appellant was charged with three counts of sexual assault and three counts of sexual interference. The complainant was a female relative who was nine or ten years of age at the time of the alleged offences. The appellant was arrested on September 20, 2016. On February 5, 2018, a jury convicted him on all counts.

[2] He appeals from those convictions on the ground of ineffective assistance of counsel. He says that trial counsel told him that he could not allow him to testify and that, as a lay person, he would not be able to withstand cross-examination by a professional cross-examiner, a Crown attorney. He says, further, that trial counsel failed to give him advice to enable him to make an informed decision about whether to testify.

[7] Trial counsel called the appellant’s wife to testify. She testified that she never worked a night shift during the relevant period, that she had always been present when the complainant spent time at the appellant’s home, and that she had never seen her husband, the appellant, touch the complainant inappropriately. Under cross-examination, she acknowledged that she was not always in the same room as her husband and the complainant, as she would come and go from the kitchen.

[8] Following a brief whispered exchange between trial counsel and the appellant in front of the jury, trial counsel indicated that he would call no more evidence. The appellant did not testify. The jury found the appellant guilty on all counts.

The Decision not to Testify

[14] Trial counsel could not specifically recall discussing with the appellant the fact that the decision as to whether to testify was the appellant’s to make. In crossexamination, he initially stated that the fact that it was the appellant’s decision “was discussed in a meeting we had very early on”. However, he then stated that he did not specifically recall this discussion. He assumed it occurred because it was his normal practice, on first meeting with a client, to go through the terms of the retainer agreement including the roles of counsel and the client.

[15] Trial counsel has no contemporaneous notes of any such discussion. Given this, and the manner in which the appellant received and returned the retainer agreement by email, I am unable to conclude that any such initial discussion took place.

[21] Trial counsel, when asked if he gave the appellant any advice as to whether or not he should testify, responded “not that I recall”. Trial counsel said he felt that the wife’s evidence was “sufficiently strong that his evidence couldn’t add a whole lot, and he didn’t want to take the stand”.

[22] He elaborated:

Her evidence had been to the extent that no opportunity existed for the sexual assaults to have occurred. And I didn’t see that he could add anything more because he was going to be saying more or less the same thing: It didn’t happen and it couldn’t have happened. And she’d already said it couldn’t have happened, I was there all the time.

[23] Under further cross-examination, trial counsel said that he “couldn’t really offer advice to [the appellant] as to whether or not I thought he needed to take the stand” until after his wife testified. He says he believed he told the appellant that his wife had been a very strong witness and that he did not “need to take the stand, but it’s your call”.

[24] Trial counsel had the impression that the appellant was nervous or reticent about testifying. There was nothing in the appellant’s background that would have made him vulnerable to cross examination about his personal history in front of the jury. There were no prior inculpatory statements. There was no evidence that trial counsel attempted to prepare the appellant for testifying at trial.

[26] Trial counsel has no notes, correspondence, memoranda to file, or docket entries referring to any instructions given to him by the appellant, or regarding trial strategy or trial procedure.

Ineffective Assistance of Counsel

[27] The only issue in this appeal is whether a miscarriage of justice occurred due to ineffective assistance of counsel. To succeed in a claim of ineffective assistance of counsel, an appellant must: (1) establish the material facts on a balance of probabilities; (2) demonstrate that counsel’s acts or omissions amounted to incompetence; and (3) demonstrate that counsel’s ineffective representation caused a miscarriage of justice: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120; R. v. Girn, 2019 ONCA 202,145 O.R. (3d) 420, at para. 91.

[29] I find that trial counsel gave the impression to the appellant that the appellant could not be allowed to testify and, in any case, failed to provide advice as to whether to testify. This resulted in a miscarriage of justice as, provided meaningful advice, the appellant would likely have testified, and there is a reasonable possibility that his testimony would have led to a different verdict.

Analysis

[30] The right to effective assistance of counsel in criminal proceedings is a principle of fundamental justice: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 24. Competence is assessed by a “reasonableness standard”, and the analysis begins with a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional judgment”: G.D.B., at para. 27.

(1)     Did trial counsel provide advice on testifying?

[34] Here, there is no such evidence. Nothing exists to show that any such discussion took place. Further, I accept the evidence of trial counsel himself that he did not give the appellant any advice about whether or not to testify until the whispered conversation in front of the jury.

[37] In this case, I conclude that trial counsel’s communications to his client did not meet the minimum standard required for legal advice about whether to testify.

[38] Further, I find that trial counsel’s communications and his manner of expression, before and after conviction, created the impression that the appellant could not be, or had not been, allowed to testify. The appellant, his wife, and appellate counsel #1 were each left with this impression, even if trial counsel had, in his own mind, not intended to foreclose testimony from the appellant. However, my conclusion that trial counsel failed to provide meaningful advice to the appellant about the decision whether or not to testify is a sufficient basis in itself to establish ineffective assistance of counsel.

(2) Was there a miscarriage of justice?

[39] ... As noted in Archer, at para. 120: “A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different.”

[41] Contrary to trial counsel’s suggestion, it is not the case that the appellant’s testimony could not “add anything more” once the appellant’s wife had testified. In her testimony, the appellant’s wife had acknowledged that even though she was home when the complainant visited, she would leave her husband and the complainant together in the same room as she went about her ordinary activities in the home.

[42] Even if the jury fully accepted the wife’s evidence, it was not necessarily inconsistent with the alleged offences taking place as the complainant described. The offences could have taken place when the appellant’s wife was not in the room with the appellant and complainant.

[43] The only person who could potentially say that the sexual touching did not occur was the appellant. Had the appellant testified, it is possible that his testimony would have led the jury to reach a different verdict.

[44] Given that there is a reasonable possibility that the verdict could have been different, had the appellant received effective assistance from counsel, a miscarriage of justice has occurred.

[45] The convictions are therefore set aside, and a new trial is ordered.