The Defence Toolkit – October 7, 2023

I. INTRODUCTION

[1] After a judge alone trial in what was then the Court of Queen’s Bench, Brandin Brick was convicted of the second-degree murder of James Chaisson, possession of a firearm while prohibited, and failing to comply with a recognizance. He was sentenced to life in prison for the murder, with parole ineligibility fixed at 12 years. Mr. Brick now appeals from his murder conviction.

[2] Mr. Brick’s appeal rests solely on the assertion that his trial counsel provided ineffective representation. Specifically, he alleges that trial counsel failed to properly advise him on the issue of self-defence and application of s. 34 of the Criminal Code, in the context of his claim that he shot Mr. Chaisson in self-defence. He argues that, as a result, he was deprived of an informed decision as to whether to testify.

[3] As I will explain, I agree that a miscarriage of justice occurred due to the ineffective conduct of Mr. Brick’s trial counsel. On that basis, I would grant Mr. Brick’s appeal, quash his conviction, and remit the matter to the Court of King’s Bench.

II. BACKGROUND

A. The trial

[5] At trial, the Crown’s theory was that Mr. Brick, along with Nathan Pelly, Dakota Badger Knight, and Justin Dreaver, drove to a 7-Eleven in Saskatoon where they met Mr. Chaisson. Mr. Brick then forced Mr. Chaisson into the vehicle, by threatening him with a firearm. The Crown contended that Mr. Brick eventually shot Mr. Chaisson in the vehicle, unprovoked, with the other passengers present. Mr. Chaisson exited the vehicle and died shortly thereafter as a result of his injuries.

[9] The Crown’s key witness at trial was Mr. Pelly. He testified that he was dating a member of the Terror Squad street gang at the time of Mr. Chaisson’s death. Mr. Pelly testified to having been present, hours prior to the shooting, when Mr. Brick and other individuals attended the residence where he was staying. Drugs, knives, and firearms were present. Eventually, Mr. Brick and Mr. Pelly left, picking up Mr. Dreaver and his girlfriend, Ms. Badger Knight. The group then attended the residence of Mr. Brick’s girlfriend, where they consumed drugs.

[10] The same group of four left around midnight and drove in a car to the 7-Eleven. Once there, Mr. Pelly testified that Mr. Brick called through the passenger window for Mr. Chaisson to enter the vehicle. While Mr. Pelly testified that Mr. Brick brandished a shotgun, a clerk at the 7-Eleven testified that it appeared Mr. Chaisson willingly entered the vehicle. Mr. Pelly stated that Mr. Brick drove a block, pulled over, and shot Mr. Chaisson who was seated behind the front passenger seat, next to Ms. Badger Knight who was seated in the middle, and Mr. Dreaver, who was seated in the back passenger side seat. In cross-examination, Mr. Pelly indicated he did not see Mr. Chaisson having or brandishing any weapon. Mr. Chaisson jumped out of the vehicle, and ultimately collapsed nearby.

[11] Mr. Chaisson had a backpack at the time of the shooting. Surveillance video showed that after he exited the vehicle, he began running down the street, tossing the backpack away, and collapsing nearby the backpack shortly after. A pedestrian walked past and stole the backpack.

[13] The Crown also called Mr. Brick’s mother as a witness at trial. She testified that the day before the shooting, Mr. Brick attended her home to pick up a firearm she had not known was there. She asked him to unload the gun. She, as well as Mr. Pelly, identified a firearm entered by the Crown as an exhibit at trial as being the one from her home.

[14] Mitchell Sasakamoose testified as well for the Crown. He was incarcerated for a period along with Mr. Brick following the shooting. He gave evidence that Mr. Brick had told him that he was prepared to shoot someone to impress a gang.

[15] The defence called no evidence.

[18] The trial judge determined that Mr. Brick had committed a culpable homicide, but had a reasonable doubt that Mr. Brick had kidnapped or confined Mr. Chaisson. He further had a reasonable doubt as to whether the shooting was planned and deliberate. The trial judge concluded that Mr. Brick intended to shoot Mr. Chaisson and convicted him of second-degree murder. He specifically noted that “[t]here is no evidence before the Court that Mr. Chaisson made any aggressive actions towards the accused or anyone else in the vehicle, and no evidence that Mr. Chaisson had or produced a weapon”.

B. Mr. Brick’s appeal and fresh evidence application

[21] Mr. Brick appeals his murder conviction primarily asserting that his trial counsel was ineffective by (a) failing to advise him on the application of s. 34 of the Criminal Code in the context of a self-defence claim, (b) determining that Mr. Brick was lying, without obtaining Mr. Brick’s account of the events underpinning the self-defence claim, and (c) advising Mr. Brick that there was a prospect of a manslaughter conviction, when there was no legal pathway to manslaughter on the evidence and when trial counsel did not argue for manslaughter before the trial judge.

1. Mr. Brick’s affidavit and viva voce testimony

[23] Mr. Brick swore an affidavit on which he was cross-examined before this Court. His account is that he shot Mr. Chaisson in self-defence, after Mr. Chaisson attempted to rob him in the vehicle by pointing a firearm at him. Mr. Brick deposes that he advised his trial counsel of this shortly after the shooting. Mr. Brick says that he raised the self-defence issue again mid-trial, prior to Mr. Pelly’s testimony in the Crown’s case, specifically telling trial counsel that Mr. Chaisson had pointed a firearm at him in the vehicle first. He avers that trial counsel decided that he was lying, dismissed the possibility of this defence, and did not interview him with respect to his account of those events.

2. Mr. Dreaver’s affidavit and viva voce testimony

[25] Mr. Brick also seeks to admit the affidavit and viva voce evidence of Mr. Dreaver. Mr. Dreaver was subject to cross-examination on his affidavit before this Court. Mr. Dreaver testified at the preliminary hearing, but not the trial. Mr. Dreaver’s evidence is that after he learned that Mr. Brick had been convicted of Mr. Chaisson’s murder, he felt compelled to come forward to say that he had witnessed Mr. Chaisson pull a firearm on Mr. Brick and attempt to rob him in the vehicle.

[26] At the preliminary hearing, Mr. Dreaver testified to a different version of events. He was compelled to appear in court under subpoena and was ultimately taken by police to Provincial Court to give evidence. He denied any knowledge of the events around the shooting. As to the reason for this conflicting testimony, Mr. Dreaver explained that at the time of the preliminary hearing, he was worried he might be charged in relation to the shooting.

3. Trial counsel’s response affidavit and viva voce testimony

[30] …He confirmed having received a psychiatrist’s fitness report in August of 2018, which indicated that Mr. Brick had FASD and attention deficit hyperactivity disorder [ADHD]. Trial counsel believed that Mr. Brick was able to understand both their communications and the nature of the legal proceedings.

[31] Trial counsel testified that Mr. Brick did not tell him that he shot Mr. Chaisson in self-defence until mid-trial on March 10, 2020, before Mr. Pelly’s evidence in chief. The conversation with Mr. Brick occurred in an interview room at the court house. Trial counsel’s evidence was that he was “taken aback” by Mr. Brick’s version of events, but proceeded to put to Mr. Pelly in cross-examination the question of whether Mr. Chaisson had pulled a gun on Mr. Brick.

[32] Trial counsel’s evidence is that he had many discussions with Mr. Brick regarding testifying. He averred that he advised Mr. Brick not to testify, but did not prevent him from testifying or make the decision about testifying for Mr. Brick. He cited the reasons for this advice being that Mr. Brick had a history with violence and drug use, as well as gang involvement. He believed the Crown would be able to “seriously damage” Mr. Brick’s credibility and reliability in cross-examination.

[33] Trial counsel testified in this Court that when Mr. Brick raised his account of self-defence, he knew him to be lying. He did not interview Mr. Brick as to the circumstances of what occurred, and believed there was an absence of evidence to support his claim of self-defence:

Q              Okay. On – on your evidence, you knew during – during Mr. Brick’s trial that, according to Mr. Brick, he had shot the victim in self-defence --

A              I didn’t --

Q              -- correct?

A              I didn’t believe that was true.

Q              Okay.

A              Mr. Brick – Mr. Brick has proven himself on multiple occasions with me that he’s capable of not telling the truth, and –

Q              Okay.

A               -- I did not believe that was true. Excuse me. There was no evidence, (a) there was another gun or that he was under any – under any threat. In fact, he told me the reason that he pulled over on Avenue B was because he was concerned that if he went into a parking lot or whatever it was at the time, that there might be other people or he might get robbed. Well, there – there was no evidence of any of that either. So, you know, I have to be cautious. When you put somebody up to provide testimony, at least in my respectful view, you should not be putting them up if they’re going to perjure – if you believe they’re going to perjure themselves. That is not going to do anybody any good --

Q               Well --

A               -- particularly that witness.

Q               Okay. [trial counsel], I think you would agree with me that you personally as an accused person’s lawyer are not the arbiter about whether or not the accused is telling his lawyer the truth; right?

A              I am the arbiter of what I believe to be correct, and I can make --

Q              Okay.

A               -- that choice as a lawyer,…

[34] The trial began on March 9, 2020, at the beginning of the Covid-19 pandemic. The Crown closed its case on June 22, 2020. Trial counsel’s evidence is that Mr. Brick attended court by video link on that date. He contacted Mr. Brick by phone that day and discussed the issue of him testifying. He averred that he explained to Mr. Brick there was no evidence of self-defence before the court, and no evidence corroborating Mr. Brick’s version of events. Trial counsel’s notes, which were adduced into evidence, did not contain the particulars of that discussion with Mr. Brick. Trial counsel indicated that Mr. Brick advised that he did not wish to testify, and further that he understood Mr. Brick’s wish to appear remotely to be indicative of a desire not to testify.

[35] In cross-examination before the Court, trial counsel testified that he had not discussed with Mr. Brick the operation of s. 34 of the Criminal Code in the context of his claim of self-defence:

Q Okay. Now, did you ever have the conversation with Mr. Brick that if he was -- if he testified to self-defence and if the Crown had not negatived Section 34 of the Criminal Code, that Mr. Brick would be found not guilty of the homicide?

A No, I didn’t talk to him about Section 34. There was no evidence of self-defence in any of the evidence, and I know you have all of the disclosure. There is zero evidence of any self-defence. There’s no other bullets. We went through that with the -- with the forensic officer. There -- there was no evidence of it, and it’s wrong to put forward self-defence if there’s no self-defence. It doesn’t make any sense.

[36] Trial counsel testified that that he had advised Mr. Brick that the best outcome possible at trial was a manslaughter conviction…

…Trial counsel conceded that he had not used the word manslaughter in his closing submission to the trial judge, and that this “was an error”.

III. ANALYSIS

A. Should the fresh evidence be admitted? 

[39] If the fresh evidence establishes that trial counsel provided ineffective representation and that, as a result, there was a miscarriage of justice, the evidence will be admitted and the conviction quashed (see R v Moore, 2002 SKCA 30 at para 2, 163 CCC (3d) 343 [Moore]; R v S.G.T., 2011 SKCA 4 at para 37, 265 CCC (3d) 550 [S.G.T.]). The governing principles for admission of evidence in this context were recently summarized by Schwann J.A. in R v Bear, 2020 SKCA 86 at para 20, 389 CCC (3d) 437 [Bear], citing R v Belcourt, 2020 SKCA 73 at para 55, 389 CCC (3d) 303 [Belcourt]:

[20] The principles that guide the exercise of the Court’s discretion in reference to s. 683(1) were recently set out in R v Belcourt, 2020 SKCA 73 [Belcourt]:

[55] The discretion reposed in an appellate court under s. 683 is most often invoked by an appellant who seeks to place additional material before the court relative to a factual or legal determination made at trial. In such cases, the criteria established in Palmer guides the exercise of the Court’s discretion. See also R v W.W. and I.W. (1995) 84 OAC 241 (CA) at para 17 [W.W.], Joanisse at para 17, and Aulakh at para 57. The following principles emerge from what is now referred to as the Palmer test:

(a) the evidence should not be admitted if, by due diligence, it could have been adduced at trial;

(b) the evidence must be relevant and bear upon a decisive or potentially decisive issue at trial;

(c) the evidence must be credible in that it is reasonably capable of belief; and

(d) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

…

[57] A modified Palmer test is applied when ineffective counsel is alleged as a ground of appeal. According to this formulation, fresh evidence may be “admitted if it is (a) relevant to an issue before the appellate court, (b) credible, and (c) sufficient (if uncontradicted) to warrant the making of the order sought” (R v Dreaver at para 33). See also R v Smith, 2007 SKCA 71, 223 CCC (3d) 114, Graham, and Aisaican at para 16. There appears to be consensus within the case law that where an allegation of ineffective trial counsel is made, the test for the admission of fresh evidence does not include the due diligence criterion: see Graham at para 31.

(Emphasis added)

[41] Applying these principles to the current circumstances, I will first address the relevance of the proposed evidence. Mr. Brick’s appeal is grounded solely in an ineffective counsel claim. His evidence, Mr. Dreaver’s evidence, and trial counsel’s response evidence, forms the foundation for consideration of that issue. It is therefore highly relevant to the issue before the Court.

[42] It is the second prong of the test, the one relating to the credibility of the fresh evidence, that gives some pause. The Crown argues that Mr. Brick’s own evidence is not credible, and cites R v Archer (2005), 202 CCC (3d) 60 (Ont CA) [Archer], for the proposition that ineffective counsel claims generally should engender a “cautious approach” (at paras 141–142). However, many of the Crown concerns centre more on the reliability of Mr. Brick’s evidence. The Crown correctly points out that Mr. Brick testified before this Court to details not included in his affidavit, such as trial counsel having entered pleas he did not agree to, trial counsel having elected the mode of trial without instruction, and inconsistencies in his account of the timing as to when he advised trial counsel that he shot Mr. Chaisson in self defence. Mr. Brick also testified to having problems with his memory. The Crown argues Mr. Dreaver is not credible, as he admitted to lying at the preliminary hearing, has a lengthy criminal record containing obstruction convictions, and has a history of dishonesty with the police.

[44] I agree with Mr. Brick’s submission on this point that there is uncontroverted evidence that does not require this Court to wade into conflicting aspects of Mr. Brick and trial counsel’s evidence. Further, while there were inconsistencies in his overall account, it is my view that Mr. Brick testified before this Court in a sincere and forthright manner. He readily admitted in cross-examination to having memory problems, addictions issues, and a history of criminal justice system involvement. Although he appeared to struggle at times to understand and respond to some of the more complex inquiries put to him, I am of the view he was not evasive, and attempted to answer questions honestly and to the best of his ability. Overall, and without predetermining any future findings in another court proceeding as to his credibility and reliability – I found Mr. Brick to be a credible witness. To the extent there are obvious reliability issues associated with Mr. Brick’s account, I find that the crucial aspects of his evidence for the purposes of this appeal are corroborated by trial counsel. I further accept Mr. Brick’s evidence that he likely would have testified to his account of self-defence at trial, but for the ineffective assistance of trial counsel.

[45] Regarding Mr. Dreaver’s evidence, Mr. Brick seeks to have it support his assertion of self- defence as being something that is more than speculative (see R v Cinous, 2002 SCC 29, [2002] 2 SCR 3 [Cinous]). After hearing Mr. Dreaver testify, and without determining the underlying credibility and reliability of his account in any future court proceeding – I was persuaded that given the narrow way Mr. Brick seeks to rely upon this evidence in the context of his appeal, it is sufficiently credible and reliable to support self-defence being put to a jury. I note that Mr. Dreaver gave a sensical explanation for his previous, and conflicting, testimony at the preliminary hearing, i.e., having been brought to that hearing in custody and fearing he may face charges in this matter. I found he was matter of fact and unwavering as to his reasons for coming forward with his evidence on Mr. Brick’s appeal. In any event, it is not his evidence that the appeal ultimately turns on.

[47] To conclude on this point, I find that the proposed fresh evidence meets the credibility hurdle. Again, to the extent the Crown’s argument on Mr. Brick’s and Mr. Dreaver’s credibility and reliability had some traction in certain respects – it is not necessary to consider and accept the whole of that fresh evidence to determine his appeal. The uncontroverted evidence of trial counsel, in and of itself, goes a very long way in this regard.

[48] The last prong of the test to admit the fresh evidence concerns whether Mr. Brick’s proposed evidence is sufficient, if uncontradicted, to warrant the making of the order sought. In other words, could this fresh evidence affect the result of the appeal. I find that Mr. Brick’s proposed evidence meets this threshold. There are points of common ground in his testimony and that of trial counsel’s, going to the heart of whether his decision not to testify was impacted by ineffective representation. Given Mr. Brick’s evidence that he would have testified but for this ineffective assistance, and the evidence about the kind and quality of the legal advice that he received, the proposed evidence, as explained below, determines the result of the appeal.

[49] All of this leads me to the conclusion that it is in the interests of justice in this case that the fresh evidence be admitted....

B. Did trial counsel act in an ineffective manner, such that a miscarriage of justice ensued?

[50] In order for Mr. Brick to succeed on his appeal, he must establish that (1) trial counsel’s acts or omissions amounted to ineffective representation; and (2) that a miscarriage of justice resulted (see R v White, 2022 SCC 7 at para 6, 411 CCC (3d) 419 [White], citing R v G.D.B., 2000 SCC 22 at para 26, [2000] 1 SCR 520 [G.D.B.]; see also Power at para 25). The focus of the ineffective counsel inquiry is ultimately on the issue of whether a miscarriage of justice occurred, and not the grading of defence counsel’s performance, having regard to the record and any fresh evidence admitted (R v Graham, 2019 SKCA 63 at para 25, [2019] 12 WWR 207 [Graham]).

[51] In Power, Kalmakoff J.A. summarized the legal framework for considering an ineffective counsel appeal, including the two components to a claim of ineffective representations, being prejudice and performance. “The initial focus is on the prejudice component. If it is apparent from the record that no prejudice was suffered due to the alleged incompetence (i.e., there was no miscarriage of justice), then the claim should be disposed of on that basis and the performance part of the claim need not be considered” (Power at para 27, citing G.D.B. at para 29; see also Bear at para 40, and White at para 6).

1. Prejudice 

[53] In order to establish prejudice, Mr. Brick must show that (a) the ineffective assistance of trial counsel caused an adjudicative unfairness, or (b) if trial counsel had performed competently, there is a reasonable probability the verdict would have been different (see G.D.B. at para 26; see also Power at para 54, Belcourt at para 51, R v Regnier, 2017 SKCA 83 at para 4 [Regnier]). The overarching prejudice inquiry requires Mr. Brick to demonstrate “that a miscarriage of justice has occurred as a result of counsel’s ineffective assistance” (R v Mehl, 2021 BCCA 264 at para 138 [Mehl], citing R v Meer, 2015 ABCA 141, 323 CCC (3d) 98, aff’d 2016 SCC 5, [2016] 1 SCR 23), and that that ineffective assistance resulted in a procedural unfairness, or compromise of the reliability of the result, or both (G.D.B. at paras 29 and 34).

[54] Mr. Brick’s principal argument in this case is that there is a reasonable probability that the verdict would have been different, but for the ineffective assistance of trial counsel. The “prejudice issue turns on whether there is a reasonable probability that, but for counsel’s errors, the results of the proceedings would have been different” (Belcourt at para 52, citing R v Joanisse (1995), 85 OAC 186 (CA) at para 65 [Joanisse] (leave to appeal to the SCC dismissed, [1997] 1 SCR viii). As to the often interchangeable use of “reasonable possibility” versus “reasonable probability” in the case law, the applicable standard “lies somewhere between a mere possibility and a likelihood” (Joanisse at para 80; see also Belcourt at para 53; Bear at paras 43–44).

[55] …His argument has been narrowed to the point that trial counsel failed to advise him on the operation of self-defence in the context of s. 34 of the Criminal Code, and that this undermined his decision about whether to testify. To paraphrase, s. 34(1) provides that an individual is not guilty of an offence if they (a) believe on reasonable grounds that force is being used or threatened against them or another person, (b) that the act is committed for the purposes of defence or protection of themselves or another person, and (c) that the act committed is reasonable. Section 34 (2) lists several factors that the court shall consider in determining whether the act committed was reasonable in the circumstances.

[56] Mr. Brick argues that his claim of self-defence meets the s. 34(1) criteria, having regard to the factors enumerated at s. 34(2), and that, had he testified, the defence would have been “put in play”, requiring the Crown to prove beyond a reasonable doubt that it did not apply, and that his act in response to the force or threat of force by Mr. Chaisson was unreasonable (Cinous at para 52; R v Khill, 2021 SCC 37 at paras 120-121, 409 CCC (3d) 141). Thus, according to Mr. Brick, there was the possibility of an acquittal if his defence succeeded. Mr. Brick says that, without meaningful advice, he could not make an informed decision on testifying. Related to this, he notes that trial counsel concluded that he was lying, even though trial counsel did not interview him about his account of the shooting.

[57] In support of his position that failing to provide advice around the decision to testify can amount to ineffective representation by counsel, Mr. Brick relies on the Ontario Court of Appeal decision in R v Trought, 2021 ONCA 379, 156 OR (3d) 481 [Trought], citing R v Stark, 2017 ONCA 148, 347 CCC (3d) 73 [Stark], and R v K.K.M., 2020 ONCA 736 [K.K.M.]:

[49] Because the right to make these decisions belongs to the client, counsel cannot make them alone. As Lauwers J.A. said in Stark, the question is whether “counsel has made certain decisions that should have been made by the accused person because they relate to the accused person’s fundamental right to control his or her own defence”: at para. 16, citing R. v. Swain, [1991] 1 S.C.R. 933, at p. 972.

[50] With respect to these fundamental decisions, ones that belong to the client, all the lawyer can do is provide advice and act on proper instructions. But that advice must be competent. As Doherty J.A. said in K.K.M., at para. 91:

An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying. In those situations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about the conduct of his defence. That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial. Either results in a miscarriage of justice, regardless of the impact of the ineffective representation on the reliability of the verdict. …

(Emphasis added)

[60] Given Mr. Brick’s evidence, I do not need to comment on the implications of White more broadly. Accepting that the White reasoning is applicable in this case – it does not undermine Mr. Brick’s argument. His evidence is that he would have testified, but for the ineffective advice he obtained from trial counsel. White adopted the reasoning in R v Wong, 2018 SCC 25, [2018] 1 SCR 696, that “subjective prejudice” requires that “an accused demonstrate there was a ‘reasonable possibility’ they would have acted differently” if they were aware of the legally relevant consequences (White at para 8, citing Wong at para 6). That reasonable possibility exists here. To that end, I reference the following excerpt from Mr. Brick’s affidavit:

85.  At my trial, I wanted to testify and tell the Trial Judge that I was acting in self-defence when I shot [Mr. Chaisson]. Trial Counsel would not permit me to testify, and made the decision not to call evidence on his own, without obtaining instructions from me.

(Emphasis added)

[61] Mr. Brick further testified as follows in cross-examination by Crown counsel before this Court:

A           I -- I wanted to be able to take the stand and tell the judge, like, my story.

A           Yeah. I was supposed to take the -- I wanted to take the stand.

[62] Mr. Brick’s evidence leads me to the conclusion that he has demonstrated that there was a reasonable possibility he would have acted differently, and that he would have testified, had he known of the operation of s. 34 and the possibility of an acquittal. His appeal is therefore not about the loss of choice only and meets the subjective prejudice test discussed in White.

[64] Respectfully, I disagree that Cinous, or a discussion of the “air of reality” in relation to Mr. Brick’s claim of self-defence, assists the Crown. The issue in this case is whether the verdict was compromised by the ineffective assistance by trial counsel, and whether a miscarriage of justice resulted. In my view, the proposed testimony of Mr. Brick that Mr. Chaisson attempted to rob him at gunpoint, in a closed vehicle, with three other passengers present, raises the prospect of objective reasonableness in the context of s. 34. While not determinative of this issue, as Mr. Brick’s evidence, in my view, would suffice, I note that Mr. Dreaver’s evidence supports this account. Put simply, there is enough on the face of Mr. Brick’s proposed testimony such that self- defence would have been at play had he testified. Thus, the Crown’s submission ignores the fact that the reliability of the verdict is in question, as Mr. Brick has demonstrated a reasonable probability that the outcome would have been different, but for the ineffective assistance.

[66] I conclude therefore that Mr. Brick has demonstrated prejudice. I turn now to the performance analysis.

2. Performance

[67] As it pertains to this case, the performance aspect of the test requires Mr. Brick to establish that “trial counsel’s representation [fell] below the standard of reasonable professional judgment expected from a lawyer” (Moore at para 55; R v Smith, 2007 SKCA 71 at para 5, 223 CCC (3d) 114; Mehl at para 136, citing Joanisse (1995), 102 CCC (3d) 35 (QL) (Ont CA) at paras 72–73; R v Aulakh, 2012 BCCA 340 at para 44, 295 CCC (3d) 315; G.D.B. at para 27; see also S.G.T. at para 49; Graham at para 27).

[69] I agree with Mr. Brick’s submission that effective representation includes providing an accused person with reasonable advice on the decision to testify (see Moore at paras 48, 51–54; Mehl at para 146; Archer; G.D.B. at para 34; Trought). The depth and detail of that advice must fit both the circumstances and capacities of the particular accused. To that end, the comments of the Ontario Court of Appeal in R v D.A., 2020 ONCA 738, 396 CCC (3d) 151, are pertinent:

[32] Effective representation by counsel includes advice as to whether or not to testify: Archer, at para. 139. As noted in G.D.B., at para. 34, defence counsel are ethically bound to discuss the decision whether or not to testify with the client and must obtain instructions from the client about his or her choice.

[33] That advice should include a review of the advantages and disadvantages of testifying in language that the accused person understands. The decision whether to testify is ultimately the client’s, but the client cannot make an informed decision unless he or she understands what is at stake at this crucial moment in the proceedings. The form and content of that review will vary in almost every case. In some cases, a skeletal discussion may suffice. In others a more detailed review will be required. Sometimes it will be lengthy, at other times it may be quite brief. Counsel should document that discussion, by a scribbled note to file if more is not possible.

(Emphasis added)

[70] Mr. Brick argues that the importance of advice on testifying in this circumstance was particularly crucial because, given the Crown’s case, there was no pathway to an acquittal or even to manslaughter unless he testified. There was no other evidence of self-defence before the trial judge. In light of this, he asserts that trial counsel had an obligation to advise him of the “danger of not testifying” (R v Ross, 2012 NSCA 56 at para 40, 290 CCC (3d) 555). Mr. Brick submits that trial counsel’s failure to advise him negated his ability to control his defence (citing R v Swain, [1991] 1 SCR 933 at 972). He also says that trial counsel’s determination that he was lying was improper and not supported by any specific knowledge that he was being untruthful.

[71] I agree with Mr. Brick that, in the circumstances here, trial counsel’s advice (or lack thereof) surrounding Mr. Brick’s testimony fell below the standard of effective representation. Even though trial counsel may have had an honest belief that Mr. Brick was lying, this did not negate the need to advise him on the framework of self-defence and the impact of that defence being raised (Moore at paras 53–55). Any decision Mr. Brick made or could make with respect to testifying – in the context of a trial where the Crown’s case for culpable homicide was overwhelming – was therefore done without “the full and careful advice of his counsel” (Moore at para 48; see also R v Chrispen, 2009 SKCA 63 at para 17, 331 Sask R 212).

[72] The conclusion of trial counsel that Mr. Brick was lying, and that the self-defence theory was not worth exploration, was also erroneous. The Quebec Court of Appeal in R v Delisle (1999), 133 CCC (3d) 541 (QL) (Que CA), confirmed that “counsel must not set himself up as the judge of his own client”, and that it is for the “trier of fact to decide guilt or innocence” (at para 56). Trial counsel could not point to objective support for his conclusion that Mr. Brick was lying, and further had not taken the step of obtaining the details of Mr. Brick’s account before coming to that conclusion. The fact there was conflicting evidence in the Crown case was not indicative of Mr. Brick’s dishonesty.

[73] This is made all the more problematic by trial counsel’s knowledge that Mr. Brick was living with FASD. I agree with the reasoning in D.A. that trial counsel’s advice and manner of communication needed to be tailored to Mr. Brick’s needs and level of sophistication. It was evident in his cross-examination before this Court that Mr. Brick struggled to understand complex questions and concepts. Trial counsel had represented Mr. Brick historically and had the benefit of a 2018 psychiatric assessment confirming some of Mr. Brick’s psychological issues. Further, Mr. Brick’s evidence is that he had never had a trial before and had never had to navigate decision-making in that context. Additional care in advising on a major decision, like whether to testify, was required by trial counsel in this circumstance. [PJM Emphasis]

[74] To conclude the performance analysis, while I appreciate the pressures that busy defence counsel face, and I further accept that trial counsel undoubtedly did his best to represent Mr. Brick’s interests – I find that his conduct in advising (or not advising) Mr. Brick on the issue of testimony was inadequate. Not only did he fail to advise Mr. Brick on the operation of s. 34, he concluded there was no merit to the defence without interviewing Mr. Brick as to the particulars, and by relying on his personal view that Mr. Brick was lying. This was compounded by his advising Mr. Brick that a manslaughter conviction was the best possible outcome, when an acquittal was possible. I respectfully conclude that this conduct fell below the reasonable professional judgment expected of a lawyer, in the context of a trial where the Crown case for culpable homicide was strong.

3. Miscarriage of justice

[76] In this set of facts, I have no hesitation in concluding that Mr. Brick has demonstrated that a miscarriage of justice occurred, as the ineffective conduct of trial counsel undermined the reliability of the verdict. On that basis, Mr. Brick’s appeal must succeed. 

IV. REMEDY

[77] Given the above conclusion, Mr. Brick’s murder conviction must be set aside and the matter remitted to the Court of King’s Bench for trial on second-degree murder.

[2] The subject matter of the appeal focuses on certain conditions imposed in the two-year probation order and the five-year s. 161 order. Those conditions relate to so-called no-contact and no-go orders. No issue is taken with any other terms of his sentence. In brief, Mr. Adams says that these conditions are demonstrably unfit in light of the purposes to be served by such orders.

[3] For context, Mr. Adams was sentenced after his guilty plea to a single count of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Adams admitted to possessing 357 images and five videos depicting child pornography. He was sentenced to 16 months’ incarceration less 90 days’ credit for pre-trial custody, a two-year probation order, DNA sampling, a five-year s. 161(1) prohibition, a 20-year SOIRA order, and a s. 164.2(1) forfeiture of seized electronic devices.

[4] The terms of the probation order under appeal are referred to as conditions 6 and 7. They provide:

6. You must not have any contact, communication, directly or indirectly, or be in the presence of any person under the age of 16. The exception is as follows:

With the prior written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times.

7. You must not engage in volunteer work or employment that would bring you in contact with persons under the age of 16 years without the prior written permission of your probation officer. You must carry this permission, which can be in electronic format, when you are engaged in the activity.

[5] Mr. Adams says a fit condition 6 would delete “or be in the presence of” and add an exception permitting incidental contact in a public place where other adults are present. Condition 7 should, he says, delete the “bring you into contact” language and add in another exception permitting incidental contact in public places where other adults are present.

[6] The s. 161 orders in issue, as set out in ancillary order 4 of the judge’s reasons, are the prohibitions from:

a. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, or community centre;

…

c. having contact or communication with a person who is under the age of 16 years; [and]

…

The exceptions are as follows:

i. in the presence of (under the supervision of) a person approved in writing by the court, your probation officer, your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you.

ii. lawful employment, with the circumstances of employment being approved in advance in writing by the court, your probation officer, your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you.

iii. as approved in advance in writing by the court, your probation officer, your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you.

[7] Mr. Adams seeks to delete the prohibitions from attending any public park, community centre, and public swimming area, leaving in place only the prohibitions against attending a daycare centre, playground, or school ground. He seeks to modify the no-contact order to allow for incidental contact in a public place when other adults are present.

[8] There is no issue about the deference owed to the sentencing judge and the circumstances in which appellate intervention is permitted. We may interfere only where the judge has made an error in principle that has affected the sentence or where the sentence is demonstrably unfit (R. v. Friesen, 2020 SCC 9 at para. 26; R. v. Lacasse, 2015 SCC 64 at paras. 41, 44). These principles apply to conditions in a probation order and s. 161 prohibitions, the imposition of both of which engage an exercise of discretion.

[9] On this appeal, Mr. Adams submits that the no-contact and no-go conditions are demonstrably unfit. The gist of Mr. Adams’ objections to the challenged terms is that they are more restrictive than reasonably necessary to achieve legitimate public purposes, most particularly protecting potential victims in the future in light of his risk of reoffending…

…He says the no-contact, no-go terms profoundly limit his liberty and make it impossible for him to function at all in society because it is impossible to avoid incidental contact with young persons in public places. The conditions force him to become isolated from society. The fact that he was already isolated was recognized, he argues, to have contributed to his offending in the first place…

[11] Judges are required to consider making a s. 161(1) prohibition when an offender is convicted or is discharged of an enumerated sexual offence. In doing so, they must give effect to the overarching protective function of s. 161(1) to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31 at paras. 45–6. As stated in the Supreme Court of Canada judgment:

[48] Further, I agree with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk: see A. (R.K.), at para. 32; see also R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106, at paras. 32-34. These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender’s specific circumstances.

[12] These principles were helpfully elaborated on in R. v. R.J.H., 2021 BCCA 54, wherein Justice Fisher explained:

[19] The evidentiary basis will naturally include everything that is considered for the overall sentence. However, given the protective function of s. 161 prohibitions, the focus should be on the offender’s specific risk and what is reasonably required to minimize that risk in the offender’s particular circumstances. As the court in A.(R.K.) held, it is not necessary for the offender to have a record of related convictions or to have committed the offence in one of the proscribed circumstances set out in s. 161(1). In my view, the scope and duration of the prohibition is informed primarily by the nature and extent of the risk, with emphasis on the risk factors particular to the offender and the pool of potential victims. The duration should also take into account the length of the sentence, the age of the offender upon release into the community, and the prospects for rehabilitation.

[13] Here, I am persuaded that the necessary evidentiary foundation existed to conclude that some kinds of restrictions on contact with children, and presence in places where children were likely to be, were justified. Although the risk of reoffending most likely involves possessing child pornography, the risk of offending through some kind of direct or indirect contact was not eliminated. Mr. Adams had no insight into the harm occasioned by his conduct and refused to participate in sex offender programmes. And, the writer of the pre-sentence psychological report, who assessed the risk to children posed by Mr. Adams, recommended that his access to minors be modified. Indeed, Mr. Adams did not take issue on appeal with the imposition of conditions or prohibitions on his contact with minors. Rather, his objection was to the breadth and sweeping nature of them.

[15] I have already described the gist of Mr. Adams’ argument. In short, he contends that the absence of an “incidental contact” exception within condition 6 and s. 161(1)(c) makes it impossible for him to function in society. It is, he reasonably points out, impossible to move around, to use public transit, to walk down the street, to do virtually any everyday activity without risking breaching the condition or prohibition. If the matter stood there, I would have little difficulty in accepting that the condition and prohibition are unreasonable and demonstrably unfit. They would not reflect a reasonable attempt to minimize the risk to children posed by Mr. Adams.

[16] But matters do not stand there. The judge built in exceptions to the no-contact orders. For example, she provided that condition 6 was subject to an exception by the prior written permission of his probation officer: such permission to be given only for “compelling reasons”. In my view, the condition and the exception must be read together to determine whether, jointly, they rest on any error in principle or are otherwise demonstrably unfit.

[17] It is evident that the judge, by providing for an exemption to condition 6, was attempting, within the exercise of her discretion, to mitigate what might otherwise be the draconian implications of the prohibition standing alone. In principle, there is nothing untoward in providing for an exception delegated to, for example, a probation officer who may be best placed to administer the order in light of the particular circumstances or needs of the offender and the community in which they live. It is difficult for a judge to anticipate all of the potential issues that may arise in any given case and a probation officer is likely better placed to craft appropriate responses as they arise.

[18] The difficulty here, in my respectful view, is that the exception as it is framed offers the probation officer unclear guidance as to the scope of the exception they may provide. The exception is stated only to be available in compelling circumstances. What are compelling circumstances? Do they capture incidental contact in public places where there are other adults? It may be that a probation officer would conclude that incidental contact of that kind was not intended to be captured because it was not explicitly provided for as an exception within the condition itself. [PJM Emphasis]

[19] In my opinion, a probation order that does not make clear, unambiguous, and effective provision permitting incidental contact in a public place in the presence of adults is demonstrably unfit in this case. Without such a provision, the probation order would be impossible to comply with, impossible to enforce, and would not reflect a reasonable attempt to protect a class of potential victims. There may be various ways in which that result can be achieved, but it should be clearly framed.

[20] …Because the term of the exception is, I think, too vague, it rests on an error in principle and risks resulting in a demonstrably unfit term on punishment.

[21] In the result, we are entitled to interfere with condition 6. I would substitute the following language drawn from the Provincial Court Probation Picklist:

You must not have any contact or communication directly or indirectly with, or be in the presence of, any person under the age of 16 years of age.

The exception is

Incidental communication, contact or presence in a public place where other adults are present.

[22] … I would add the exception, as phrased above in para. 21, as an additional exception to the s. 161 “no-contact” order set out as ancillary order 4(c) in the judge’s reasons.

[24] In the result, I would allow the appeal only to the extent set out in these reasons, having already extended the time to apply for leave and granted leave to appeal.

[25] HUNTER J.A.: I agree.

[26] GRIFFIN J.A.: I agree.

[27] HARRIS J.A.: The appeal is allowed to the extent set out in the reasons.