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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a resolution (in a domestic assault case) that would allow him to enter into a bond in exchange for the charges being withdrawn; 3) how disclosing the statement to the Crown amounted to a waiver of his right to silence; 4) the specific risks associated with being cross-examined on the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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An evidentiary assessment, from the case-law, of the motives of complainants to lie in historical sexual assault cases, and a disbelief of accused’s evidence

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Motive to Fabricate

While the assessment of credibility in a context of a sexual assault is driven by general principles, there are deeper legal principles, surrounding the rules of evidence that govern its application.   In Regina v. A.S., 2017 ONCA 994, the Ontario Court of Appeal ordered a new trial for historical sexual offences allegedly committed by a pediatrician against two (2) of his former patients. The allegations spanned a period between 1964 and 2013. He was acquitted of charges against four (4) other complainants at trial. There is a publication ban on the nature of the facts.  The factual findings are related in the decision of the Court of Appeal.  This case is helpful in that is reinforces the Appellate Court’s views on the assessment of credibility when consider a motive to lie and the Crown’s failure to corroborate evidence in the context of historical sexual assault cases, where witness memories are typically spent.

Court of Appeal’s Decision in A.S.

The Court of Appeal found that the Trial Court’s misapprehensions of evidence and unsupported conclusions, taken together, meant the convictions could not stand. In summary, trial court had held that an absence of a complainant’s motive to lie enhanced her credibility. In citing Regina v. L. (L.)(2009), 96 O.R. (3d) 412 (C.A.), 2009 ONCA 413 (CanLII), at para. 44, the Court of Appeal held that “There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility” (at para. 25).  Of note, is the Court’s comments that certainly the absence of any apparent motive to lie is an unreliable marker of credibility.  Consequently, it is generally an unhelpful factor in assessing credibility  The trial court also erred by drawing an inference of guilt from her disbelief of the accused’s evidence and by attributing a motive to him, to visit the complainant, that was based on a misapprehension of the evidence. In addition, the trial court also rejected defence submissions about the importance of the absence of corroboration.  It stated: “None is required. Given the way the alleged crimes were committed where the only persons present were doctor and patient, the potential for corroboration does not arise.” The Court of Appeal found that while the trial judge is correct that corroboration is not necessary in such cases, the trial court was not correct that the alleged crimes were committed where the only persons present were doctor and patient. On the complainant’s own version of events, a nurse walked in during the most serious of the assaults she described. There were other areas of potential corroboration as well, such as records confirming contact between the appellant and complainant. that never materialized. The trial court inaccurately dispensed with the potential for corroboration, presenting the risk that she may not have given sufficient consideration to the undeniable fact that the complainant’s allegations stood alone.
 

The above noted information is not intended as legal advice.  If you have been charged with a historical sexual assault offence, call Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.