R. v. M.B.,

• Jurisdiction: Ontario
• Judge: Cronk, Armstrong and LaForme, JJ.A.
• Neutral Citation: 2009 ONCA 524
• Citation: (2009), 251 O.A.C. 81 (CA),2009 ONCA 524,68 CR (6th) 55,[2009] CarswellOnt 3678,[2009] OJ No 2653 (QL),192 CRR (2d) 135,251 OAC 81,251 O.A.C. 81,(2009), 251 OAC 81 (CA),[2009] O.J. No 2653 (QL)
• Date: 26 June 2009
• Court: Court of Appeal (Ontario)

R. v. M.B. (2009), 251 O.A.C. 81 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JN.099

Her Majesty The Queen (respondent) v. M.B. (appellant)

(C45582; C45607; 2009 ONCA 524)

Indexed As: R. v. M.B.

Ontario Court of Appeal

Cronk, Armstrong and LaForme, JJ.A.

June 26, 2009.

Summary:

The accused was convicted of sexual assault and sentenced to an 18 month conditional sentence followed by three years' probation. The accused appealed his conviction on the grounds that he was denied effective assistance of counsel at trial, the trial judge misapprehended the defence expert evidence and erred in assessing the complainant's credibility.

The Ontario Court of Appeal allowed the appeal and ordered a new trial. The ineffective representation by trial counsel, together with the trial judge's flawed treatment of defence expert evidence, required a new trial as there existed a reasonable probability that a miscarriage of justice occurred.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Ontario Court of Appeal allowed an accused's appeal from his sexual assault conviction on the grounds of ineffective assistance by counsel and misapprehension of defence expert evidence - The accused was not provided with a copy of his statements to police before trial - Counsel did not obtain the statements, review them with the accused or advise the accused to review them, even though 16 months passed since the statements were made - Counsel failed to advise the accused not to discuss the Crown disclosure brief with two friends, who were later called by counsel as defence witnesses even though it was known that their evidence would contradict some of the accused's testimony - Although counsel knew that the accused's statements would be used by the Crown to cross-examine the accused, counsel took no steps to prepare the accused for cross-examination, which was devastating to his credibility in a case where credibility was the critical issue - The accused was "woefully ill-prepared" for cross-examination - The court stated that "counsel's failure to ensure that the appellant was afforded a meaningful opportunity to review his statements in preparation for cross-examination materially prejudiced the appellant in his defence. Defence counsel's failure to obtain copies of the appellant's statements to the police for the appellant to review in preparation for giving evidence at trial fell below the prevailing standard of competence by counsel applicable in a case of this kind" - Counsel's decision to call the two friends to testify, knowing that they would give contradictory evidence, was "ill-advised and highly prejudicial" to the accused's defence, further undermining his credibility - Counsel also prejudiced the accused's defence by failing to challenge the complainant's credibility by cross-examining her on her own prior inconsistent statements - But for counsel's incompetence, and also considering the trial judge's misapprehension of defence expert evidence, there was a reasonable probability that the result at trial would have been different.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Ontario Court of Appeal stated that: "in order to succeed in a claim of ineffective assistance of counsel at trial, an appellant must establish: (i) the facts on which the claim of incompetence is based; (ii) that the representation provided by trial counsel was incompetent (the performance component of the test); and (iii) that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test) ... it is best to begin with an inquiry into the prejudice component of an ineffective assistance of counsel claim. If the appellant cannot demonstrate prejudice from the alleged ineffective assistance of counsel, it is unnecessary to address the competence of counsel at trial. The standard to be met in relation to the performance component of the test is one of reasonableness. Hindsight has no place in this assessment. ... The prejudice component focuses on 'the nature and seriousness of counsel's errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict ... Prejudice can be established if the appellant can show that there is a reasonable probability that but for the alleged incompetence, the result of the proceeding would have been different. A reasonable probability in this context is a probability that is sufficiently strong to undermine the appellate court's confidence in the validity of the verdict" - See paragraphs 8 to 10.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - [See both Civil Rights - Topic 3158 ].

Cases Noticed:

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), leave to appeal denied (1997), 208 N.R. 79 (S.C.C.), refd to. [para. 6].

R. v. T.P. (2002), 160 O.A.C. 118; 59 O.R.(3d) 577 (C.A.), refd to. [para. 8].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 9].

R. v. Dunbar (B.), [2007] O.A.C. Uned. 500; 2007 ONCA 840, refd to. [para. 10].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 72].

R. v. Verney (M.) (1993), 67 O.A.C. 279; 87 C.C.C.(3d) 363 (C.A.), refd to. [para. 73].

Counsel:

Timothy E. Breen, for the appellant;

Deborah Krick, for the respondent.

This appeal was heard on March 26, 2009, before Cronk, Armstrong and LaForme, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered jointly by Cronk and Armstrong, JJ.A., and released on June 26, 2009.