Tag Archives: Domestic offences in Calgary

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Incompetence of Counsel: Disclosing a Statement to the Crown.


Ineffective Assistance of Counsel: Disclosure statements to Crown Prosecutors without informed consent of the client.

In Rex v. McDonald, 2022 ONCA 838, the Ontario Court of Appeal set aside a defendant’s convictions for aggravated assault and threatening death based on an finding that the appellant received ineffective assistance from his trial counsel resulting in a miscarriage of justice.  The indexed conduct of counsel included her improper disclosure of the appellant’s statement to the Crown, without the appellant’s knowledge or consent. 

The Court itemized various issues relative to the trial counsel’s conduct of the matter at para 12:

[12]   Before receiving Crown disclosure, the appellant’s trial counsel told him he “needed” to prepare a “statement” describing his background, relationship with the complainant, and his response to the allegations. The appellant followed his counsel’s instructions. Then, in the hope of securing an agreement to resolve the case by way of a peace bond, and after making some minor revisions, trial counsel disclosed this statement to the Crown. Counsel did not obtain written instructions from the appellant authorizing the disclosure, nor does her file contain any note, memo or docket capturing any discussion between her and the appellant about the statement’s purpose and what she was going to do with it. In fact, examination of trial counsel revealed that she did not discuss any of the following with the appellant: 1) settlement privilege; 2) the unlikelihood of a resolution (in a domestic assault case) that would allow him to enter into a bond in exchange for the charges being withdrawn; 3) how disclosing the statement to the Crown amounted to a waiver of his right to silence; 4) the specific risks associated with being cross-examined on the statement’s contents; and 5) the risks associated with preparing a statement before reviewing disclosure.

The Crown cross-examined the appellant on the statement at trial. The court observed (at para. 27) that counsel “either did not appreciate – or did not want to take the time to investigate and inform herself about – the protection settlement privilege might afford the appellant.”   Furthermore the Court further stated at para. 28 that counsel made “fundamental decisions without instructions. It was essential that the appellant understand that he enjoyed the right to silence and that he did not have to provide any information to the Crown. The appellant did not (and could not reasonably have been expected to) understand this, and trial counsel took no steps to ensure he did.”

If you have been charged with a criminal offence in Toronto, Calgary or Vancouver Island, for a free initial consultation, contact Mr. J. S. Patel, Criminal Lawyer at 403-585-1960

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In for an inch…. Joint/co-principal liability in Criminal Offences in Canada by JS Patel, Criminal Defence Lawyer (403-585-1960)

In Regina v. Strathdee, 2021 SCC 40, the Supreme Court of Canada (the “SCC”) upheld a decision of the Alberta Court of Appeal (2020 ABCA 443) overturning the acquittal for unlawful act manslaughter and entering a conviction. The trial judge had acquitted the accused after considering joint/co-principal liability and abetting under ss.21(1)(a) and 21(1)(c), respectively, of the Criminal Code of Canada (2019 ABQB 479).  The charges against Mr. Strathdee stemmed from a group assault in which several victims sustained multiple injuries and one victim, Mr. Tong, sustained a single stab wound which caused his death.

Joint Liability in Criminal Offences in Canada. Recent Decision from the Supreme Court of Canada (November 2021)

The SCC agreed with the Court of Appeal that there was no basis for the view that the stabbing of Tong was a distinct act outside the scope of the group attack. 

The court stated: “Having regard to the findings of fact in paras. 137 and 156-59 (CanLII) of the trial decision, and the statement of law set out by the Court of Appeal at paras. 61, 66 and 68 of its decision, this Court affirms the result of the Alberta Court of Appeal that is guilty of unlawful act manslaughter.” 

The court also clarified a statement of law in Regina v. Cabrera, 2019 ABCA 184, aff’d Shlah, 2019 SCC 56, regarding joint/co-principal liability noting:

“Joint/co-principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission. In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributing cause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a single individual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained. Properly read, the discussion of party liability in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, is fully consistent with the foregoing.”

If you have been charged with a criminal offences in Canada, contact Mr. J.S. Patel, Criminal Defence Lawyer for a consultation: 403-585-1960 or 647-323-1960.

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An example of a flaw credibility assessment of testimony in a sexual assault cases results in a conviction being overturned on appeal

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Sexual Offences and Credibility - How Credibility is Assessed in Criminal Trials
Sexual Assault and Credibility findings in a Criminal Trial: How Credibility can be assessed in Criminal Trials in Canada

In Reginav. J.L., 2018 ONCA 756the OntarioCourt of Appeal set aside the accused’s conviction for sexual assault and ordered a new trial  At trial, the case that turned largely on credibility.  This case is just one example  of a flaw credibility assessment of testimony in a sexual assault cases results in a conviction being overturned on appeal

The accused was convicted of sexually assaulting the complainant at a dance. . The key issues raised in this conviction appeal are (a) the sufficiency of the trial judge’s reasons, (b) whether he properly relied on a behavioural assumption, and (c) on the complainant’s post-occurrence demeanour in convicting the appellant. This case is a good example of the subtleties that may be unearthed in cross-examination during the course of the trial that may not be transparent prior to the commencement of the same.

The Court of Appeal agreed and found that the trial judge did not engage in any analysis of the testimony of the complainant and the accused other than to note “inconsistencies and many lapses of memory.”  In fact, the judge essentially relied on two (2) facts to explain why the complainant’s version of the events accepted, namely that: (i) she did not consent to sexual contact; and (ii) that the accused pressed on with attempted intercourse: the complainant’s demeanour after the incident and the finding that it “defied common sense” that a young woman would go outside in a dress in mid-December and consent to sexual activity on the ground.

The court held that the trial judge failed to consider the similarities in the complainant’s emotional state before and after the alleged assault. Her physical state was also consistent with the possibility of having engaged in consensual sexual activity. The trial judge’s assumption about what a “young woman” would or would not do could not be taken as a fact, and yet the trial judge relied on it to reject the accused’s evidence. There was a danger that this reasoning affected the trial judge’s conclusion as to whether the Crown had proven its case.  The Appellate Court stated the following in relevant part:

[46]      The second basis for the trial judge’s conclusion depended on an assumption about what a “young woman” will and will not do. As mentioned, the trial judge said: “I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.”  In other words, the trial judge could not accept, or even have a doubt arising from, the appellant’s evidence because the trial judge was of the view that, young women would not do what the complainant was said to have consensually done.  There is a real danger that this reasoning contributed to the trial judge’s assessment of whether, on the whole of the evidence, the Crown had proven the appellant’s guilt beyond a reasonable doubt. I do not share the trial judge’s view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.

[47]      Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what young women will and will not do may impact a judge’s objective deliberation of the reasonable doubt standard. In R. v. Mah, 2002 NSCA 99 (CanLII), [2002] N.S.J. No. 349, at para. 75, Cromwell J.A. (as he then was) stated:  “Assumptions about the ways of the world appear to have contributed to the judge’s failure to give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt”. Here, by relying on an assumption regarding what young women will and will not do, as if it were a fact, and in light of the centrality of that assumption to the trial judge’s reasoning, his finding of guilt was tainted by error.

Again, this case is a good example of the subtleties that may be unearthed in cross-examination during the course of the trial that may not be transparent prior to the commencement of the same.

If you have been charged or are about to be charged with sexual assault under section 271 of the Criminal Code of Canada, contact Mr. J. S. Patel, Criminal Lawyer in Calgary  or Toronto at 403-585-1960 for an initial consultation.