R. v. Sagos, 2022 ONCA 603

What you need to know

-       Appellant has the onus of establishing ineffective assistance of counsel. This includes the responsibility to prove the facts underlying the claim.

-       Counsel’s failure to seek an order compelling trial counsel to give evidence in response to the allegations permits the inference that anything trial counsel may have said would either have undermined the appellant’s claim, or, at a minimum, not helped the appellant’s claim.

-       Where the underlying facts are in dispute and the appellant could reasonably be expected to have information relevant to those facts, the appellant’s failure to provide an affidavit invites adverse inferences against the validity of the claims.

-       Trial counsel, either for the defence or the prosecution, is a compellable witness at trial. As a result, trial counsel can be compelled to give evidence on an ineffective assistance of counsel claim: see s. 683(1)(b) of the Criminal Code.

Background

The appellant was charged with the criminal harassment and extortion of his former lawyer who had acted for him in relation to prior charges in Bermuda. The appellant had previously been arrested for drug charges in Bermuda – his former lawyer put him in contact with counsel in Bermuda who facilitated a guilty plea and his release. The appellant was able to return to Canada shortly thereafter. Upon his return, however, the appellant became increasingly concerned about the negative impact of the Bermuda charges on his reputation. He appeared to believe that the Bermuda charges were the result of some larger conspiracy against him, and that his former lawyer had improperly withheld disclosure from him. The appellant’s apparent paranoia led the appellant to sue the police and his former lawyer, as well as initiate a complaint against the former lawyer to the Law Society of Ontario – all of which were dismissed. The appellant then began sending abusive and threatening emails to his former lawyer leading to the charges subject to this appeal.

The trial was short and uncomplicated. The appellant was ultimately convicted on both charges and given a suspended sentence.

Issues on Appeal

The appellant raises a single ground of appeal: his trial counsel provided ineffective assistance resulting in a miscarriage of justice.

Disposition – Appeal dismissed.

Ineffective Assistance of Counsel Claim

What is an Ineffective Assistance of Counsel Claim?

An individual convicted of one or more charges who believes their trial counsel failed to provide effective representation may choose to bring an ineffective assistance of counsel claim on appeal.

For this type of claim to succeed, the appellant must establish:

1.    Counsel’s performance was deficient (either through act or failure to act) such that counsel made serious errors amounting to incompetence (the “performance component”); and

2.    The alleged deficient performance prejudiced the accused in a way that deprived them of a fair trial creating a miscarriage of justice (the “prejudice component”)

The appellant must also establish the facts underpinning the claim of incompetence on a balance of probabilities. This is usually achieved by way of fresh evidence motion. Generally, this takes the form of an affidavit sworn by the appellant or oral testimony that sets out the claims of incompetence or alleged deficiencies. The impugned trial counsel then has the opportunity to respond by cross-examining the appellant on their affidavit and/or filing their own affidavit. The appellant also has the opportunity to cross-examine trial counsel on their affidavit, or, if counsel does not file an affidavit, an opportunity to examine trial counsel on their performance at trial.

The threshold for succeeding in this type claim is very high. There is a strong presumption in favour of competence.

For more information regarding procedural steps relating to ineffective assistance of counsel claims in Ontario, see Section 17 of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario here.

For more information no ineffective assistance of counsel claims in Canada, check out Emond’s “Criminal Appeals: A Practitioner’s Handbook” – Volume 2 of the Criminal Law Series.

Application

The usual procedure for ineffective assistance of counsel claims was not followed in this case: neither the appellant nor trial counsel filed an affidavit. The Crown did not file any materials on the motion. Neither the appellant nor the Crown sought to examine trial counsel for the purposes of the motion. Rather, the appellant’s materials consisted of three affidavits from individuals with no connection or knowledge of the relevant circumstances.

Failure to compel trial counsel to give evidence - The appellant’s counsel on appeal submits she did not seek to cross-examine trial counsel because there was no authority to compel trial counsel to submit to examination. The court rejects this submission. Section 683(1)(b) of the Criminal Code permits the Court of Appeal to direct any witness to attend for examination if that witness would have been a compellable witness. Trial counsel, either for the defence or the prosecution, is a compellable witness at trial, although the circumstances in which trial counsel will be required to testify are narrowly circumscribed by the demands of the interests of justice and subject to the rules of evidence (i.e. solicitor-client privilege).

Counsel’s failure to seek an order compelling trial counsel to give evidence in response to the allegations permits the inference that anything trial counsel may have said would either have undermined the appellant’s claim, or, at a minimum, not helped the appellant’s claim. On the flip side, the court would not draw any inference from trial counsel’s failure to give evidence as there was no affidavit from the appellant to respond to.

Appellant’s failure to provide any affidavit – There are circumstances, i.e. where the underlying facts are not in dispute, that the facts underlying an ineffective assistance claim can be easily established without any affidavit from the appellant. In this case, however, the facts on which the ineffective assistance claim are predicated, are highly disputed.

Where the underlying facts are in dispute and the appellant could reasonably be expected to have information relevant to those facts, the appellant’s failure to provide an affidavit invites adverse inferences against the validity of the claims.

Ineffective Assistance of Counsel Claim – Based on the trial record, the court concludes that trial counsel advanced a reasonable defence in a competent manner and did not engage in ineffective or incompetent cross-examination of the former lawyer. Given that the appellant did not file an affidavit, the appellant’s other allegations of ineffective assistance (i.e. that trial counsel failed to protect solicitor-client privilege or trial counsel’s failure to object to late disclosure) amounted to mere speculation that could not be substantiated. As a result, the court rejected the appellant’s ineffective assistance of counsel claim.