Effective Assistance - Tactical Dispute


Anthony Regnier was charged with assault with a weapon, to wit, his dog. During police attendance he had allegedly “sicced” his dog on the police. He was convicted after trial. He was sentenced to 90 days jail and 12 months probation.

Regnier appealed. He alleged ineffective assistance of counsel and his sentence was unfit. His appeal was dismissed: 2017 SKCA 83.

The Court of Appeal outlined the background to this complaint as follows:

Taking these appeals in turn, Mr. Regnier’s notice of appeal against conviction alleges “defence lawyer conflict” and that his “defence was not properly heard.” Particularising these allegations in the hearing before us, Mr. Regnier said he had wanted his trial counsel to call two witnesses to corroborate his own testimony to the effect that he had not “sicced” his dogs on a police officer, which had given rise to the assault with a weapon charge. He says his trial counsel persuaded him to believe the Crown’s case was weak and, therefore, he reluctantly agreed not to adduce further evidence. The fact a discussion of this general sort occurred between Mr. Regnier and his trial counsel, although not its detail, is borne out by the transcript of trial. [Para 2].

To succeed, Regnier would have to “first establish that his trial counsel’s advice not to call the two witnesses in question constituted incompetence and, second, that a miscarriage of justice resulted”: see for example R v GDB, 2000 SCC 22.

The court noted further that it is important for a reviewing court to start with the “strong presumption” of counsel competence.   

An appellant must establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. In assessing that conduct, “the wisdom of hindsight” has no role to play—that is, the adverse result of a trial strategy or decision does not of itself diminish the reasonableness of the strategy or decision when it was made or taken. [Para 5].

Turning to apply this law, the court noted there was:

...nothing in the court record that, on its face, suggests Mr. Regnier’s trial counsel acted incompetently. There are many reasons why an accused might decide to call or not call a witness. In this case, we are not privy to the details of the discussion between Mr. Regnier and his trial counsel in that regard—or, indeed, to what the two witnesses in question might or might not have said had they been called. We only have what Mr. Regnier says occurred because his trial counsel was not notified of this allegation of ineffective representation and Mr. Regnier has not waived his solicitor-client privilege, which would have allowed his trial counsel to defend against it. In short, the evidence falls far, far short of displacing the presumption of trial counsel competence. [Para 6].

The court further noted, for sake of completeness no doubt, that there was no apparent miscarriage of justice.

With respect to the 90 day sentence, it was not demonstrably unfit and no error of law or principle was occasioned by the sentencing judge. Appeal dismissed.

Regnier is a welcome decision reinforcing the presumption of competence and limiting success on appeal alleging incompetence when the true request is to permit another trial with a different tactical approach.


Public Interest is Not Dead


Kim Madsen was convicted of aggravated assault. He was sentenced to 40 months in jail. He appealed. He sought bail pending appeal. That request was denied: 2017 SKCA 73.

The Court of Appeal first considered whether the appeal was “frivolous” pursuant to s679(3)(a). It noted that the test represents a “very low bar”: see R v Oland, 2017 SCC 17; and R v Gill, 2015 SKCA 96 @para 15. Noting the grounds of appeal, the court concluded that the appeal was not frivolous – but, notably the court held that the merits of the appeal could also be considered under public interest:

While there may be some merit to the Crown’s position with respect to this criterion, I note the trial judge gave very serious consideration to Mr. Madsen’s defence. His oral decision encompasses some 150 transcript pages where he extensively reviews the evidence in support of Mr. Madsen’s claim to self-defence and his claim that he was not the cause of Mr. Peepeetch’s paralysis. Having regard for the seriousness with which the trial judge gave to Mr. Madsen’s defence, I am not prepared to say that the grounds of appeal from conviction are baseless, as the Crown suggests. I am, however, entitled to consider the strength of the grounds of appeal as presently put to me as part of my assessment of the public interest criterion. [Para 8].

Turning to the public interest ground pursuant to s679(3)(c), the court reflected on Oland and noted the following [see para 10 and 12]:

  • Not every application for bail engages public confidence: Oland @para 29
  • The more serious the crime the more public confidence will be undermined if the accused is released pending appeal: Oland @para 37
  • There must be a balancing of the relevant factors including the strength of the appeal and the seriousness of the offence: Oland.

Taking into account these factors the court denied Madsen’s release pending appeal concluding that it would be contrary to the public interest. In part, this was so due to grounds of appeal which were not particularly compelling and the seriousness of the offence – as described by the court:

As a result of what happened on the night in question, Mr. Peepeetch suffered a number of fractures to his spinal area, losing all function in his lower limbs and a certain loss of strength in his arms and hands. He now needs almost constant care. The medical expert at trial testified that “it is the force of impact … which cause[d] the injury to the spinal cord” (T699). Mr. Peeepeetch will remain “essentially a paraplegic” (T691). That same expert testified that Mr. Peepeetch’s injuries were caused as “a result of [the] patient’s neck being forced up and down” (T691). [Para 11].

Madsen offers a helpful example of circumstances, albeit they seem rare, where bail pending appeal may be properly denied.



Implied Duty to Google It?

Marshall, a pediatrician was charged with 32 counts of sexual assault and sexual interference in relation to 20 of his former patients and two young males who were not patients. At the conclusion of the trial Marshall was acquitted of all the allegations involving the 20 patients and one of the non-patients.

Marshall was convicted of one count of sexual assault in relation to a young man PM, who was not a patient. PM testified that on three occasions when he was between the ages of 16 and 18, Marshall touched him in a sexual manner. Marshall was found guilty of touching PM’s genitals, rubbing his crotch against PM’s buttocks and laying on top of PM. In the last incident PM was able to break free and run away as Marshall “I am not trying to fuck you yet.” [at para. 8]

Marshall was sentenced to 8 months in custody. He appealed both conviction and sentence and sought to tender fresh evidence. The Ontario Court of Appeal dismissed the appeals from conviction and sentence: 2015 ONCA 518

The Court also declined to admit the fresh evidence. On appeal Marshall sought to tender evidence that PM suffered from PTSD, anxiety and depression, all of which arose following his return from a difficult tour on active duty as a member of the Canadian Armed Forces. Additionally, Marshall wished to tender evidence that in 2006 PM had been charged with two counts of assault causing bodily harm and two counts of assault and that a stay of proceedings was entered following the plea of guilty of a co-accused.

The Court found that none of the proposed fresh evidence met the threshold for admissibility as set out in the Supreme Court’s decision in Palmer. In reaching this conclusion the court noted that the evidence was in fact “available at the time of trial in that it was posted on the internet.” [at para 19].  Such a statement of course begs the question, do lawyers have an implied duty to google it?





684: Common Sense and Constitutional

PC was charged with manslaughter. During his trial, he was assisted by two legal-aid lawyers and an interpreter. He was convicted. PC filed notice that he would appeal his conviction, but was not granted additional legal aid on the grounds that his appeal lacked merit. He then brought a motion to have counsel appointed for him to facilitate his appeal, pursuant to s. 684(1) of the Criminal Code. The Crown argued such an appointment would not be “desirable in the interests of justice” because PC did not demonstrate his appeal possessed arguable merit. The motions judge dismissed PC’s application. PC responded by challenging the constitutionality of s. 684: 2014 ONCA 577.

PC argued that because persons who can afford to hire counsel can do so whether or not their appeal has merit, indignant accused persons should have the same right under s. 7, s. 10(b), s. 11 and s.15 of the Charter [para 3].

The Court of Appeal rejected PC’s Charter arguments for two reasons:

First, the Court found the Charter does not require an automatic right to publicly funded counsel for appellate purposes, and that s. 684 is an ameliorative program that falls within s. 15(2) of the Charter. PC’s challenge on the basis of s.15 was dismissed [para 11-14].

Second, the court found that ss. 7, s. 10(b) and s. 11 work in tandem to ensure an accused person is always treated fairly, from the point of arrest or detention through to the end of an adjudicative process [paras 16-19]. This includes the appeals process.

In the context of a trial, fairness will sometimes require that counsel be appointed where provincial legal aid has been denied: R v Rowbotham, 25 OAC 321 [para 20].

In the context of an appeal, the Court concluded that if the following criterion is satisfied, fairness will be ensured:

  1. The accused has a full and fair opportunity to exercise any right of appeal, and
  2. The accused is able to effectively present their appeal.

Concerning the first criteria, the court noted that in exceptional circumstances, counsel may need to be appointed to assist an accused in ascertaining whether or not grounds for an appeal exist. A motions judge can appoint counsel for this limited purpose [para 27].

Concerning the second criteria, once a ground of an appeal has been ascertained, for the purposes of effectively presenting the appeal, the appeal must be arguable. The court found that it is common sense to conclude that “appeals which are void of merit will not be helped by the appointment of counsel”: R v Bernardo, 105 OAC 244 [para 29]. An aspect of “rational objectivity” must be imported in order to balance the interests of the accused and the state. Requiring an accused to demonstrate that an arguable appeal exists does not treat the accused unfairly [para 30].  

After articulating these criteria, the Court then highlighted four additional aspects of s. 684 that demonstrate why it withstands constitutional scrutiny:

First, the fact that legal aid has been refused is not determinative of whether or not the “interests of justice” require counsel to be appointed [para 31].

Second, the cost of assigning counsel cannot influence a Court’s determination under s. 684, because these costs are to be accepted as “the price of the proper administration of justice”: Bernardo, supra [para 31].

Third, an indignant accused almost always has the assistance of duty counsel or legal aid to argue a s. 684 motion. Here, the Court went further and commented that this assistance may also include the preparation of an affidavit, which outlines whether an accused can meaningfully exercise his right of appeal, and effectively present it, with reference to relevant considerations such as:

  • the accused’s means,
  • the seriousness of the charge of which the accused was convicted,
  • the sentence received,
  • age,
  • youthfulness,
  • education,
  • ability to speak, understand and write English or French,
  • disability,
  • familiarity or lack thereof with the criminal justice system,
  • the length of the trial,
  • the complexity of the appeal, and
  • the legal principles engaged and the appellants ability or lack theory to effectively relate them to the facts of the case [paras 33-34].

Fourth, a decision on a motion pursuant to s. 684 is not a final one. An accused may seek a panel review of a refusal, or renew an application with the benefit of an expanded record following trial [para 35].

For these reasons, PC’s challenge on the basis of ss. 7, 10(b) and 11 was dismissed.

The Court of Appeal upheld s. 684 of the Criminal Code as constitutional. However, the Court did note that a renewed application in PC’s case could succeed on the basis of the newly expanded record (which included a full consideration of his age at the time of conviction, the seriousness of the crime, his inability to communicate in English except through an interpreter, and his lack of familiarly with the legal system and its principles) [para 35].


New & Notable: When is it "desirable" to have a lawyer...

One jury found Warren Abbey not guilty of first-degree murder; another jury found him guilty. One jury heard nothing about the significance of Abbey’s tear drop tattoo near his eye; another jury heard from an expert on the significance of just such a tattoo among members of urban street gangs. The Ontario Court of Appeal decided that the first jury had been unfairly and erroneously deprived of that evidence and thus ordered that a second trial be held. Abbey appealed that second jury’s finding on the basis that it was unreasonable. Although Abbey had a lawyer acting on his behalf at his first trial, the Crown’s appeal therefrom and at his second trial, Legal Aid Ontario dismissed Abbey’s application to have a lawyer argue his appeal. Abbey applied to the Court of Appeal pursuant to section 684 of the Code to have counsel appointed. Watt JA dismissed that application: 2013 ONCA 206.


Section 684 of the Code permits a judge or panel of judges of the Appellate court to appoint counsel to act on behalf of an accused who is a party before the court. The judge or panel must be satisfied that it is “desirable and in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance” [para 29].

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New & Notable: No good deed goes unpunished

Robert Ellis attacked his parents with a club and sword.  He pleaded guilty to two counts of assault with a weapon.  He was found not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code.  He appealed, arguing that his counsel was incompetent and that the NCR finding was unreasonable.  The Ontario Court of Appeal resoundingly and unanimously dismissed the appeal: 2012 ONCA 906


The Crown sought and was granted an assessment of Ellis’ mental condition.  The first psychiatrist said that he was fit to stand trial and was likely criminally responsible. 

The Crown sought and was granted a second assessment.  The second psychiatrist said that Ellis had an NCR defence available to him based on his mental state at the time of the offence. 

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New & Notable: Focusing on a proper assessment of credibility

RJH was convicted after trial of sexual assault and sexual interference against AD, an 11 year-old girl and KM a 13 year-old girl.


RJH was 32 years old at the time of the offences and knew KM from her birth. AD was a close friend of KM’s and met RJH through her friend. All three communicated regularly by computer chats. KM testified that RJH asked her to have sex with him while they were in his truck. KM said no. Undeterred, RJH pulled down her pants and panties and tried, unsuccessfully, to insert his penis into her vagina. One month later KM reported the incident to police. AD testified that while in RJH’s truck, RJH picked her up, put her on his lap and asked her to have sex. RJH asked more than once and AD kept saying no. KM was driving the truck when this happened. RJH testified and denied the offences.

RJH was convicted after trial and appealed: 2012 NLCA 44.

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New & Notable: Letting trial judge's do their job...

RP was married to GL.  GL had a sister, ML.  ML, who was 13 at the relevant time, would babysit from time to time for RP and GL.  RP was 27 at the time.  Some 30 years later RP was tried for indecent assaults committed against ML.  RP was convicted by the trial judge.  He appealed to the Quebec Court of Appeal; a majority of that court found the verdict was unreasonable and entered an acquittal: 2010 QCCA 2237.  The Crown appealed.  A majority of the Supreme Court overturned that decision and restored the conviction: 2012 SCC 22.


Deschamps J, on behalf of the majority, noted that the case revolved around the credibility of the witnesses.  The sole legal issue on appeal was the reasonableness of the verdict. 

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Comment: At Least Three Agreed...

Well at least three got it right.  On November 4, 2011 the Supreme Court released its decision in R v Sarrazin, 2011 SCC 54.  I had predicted that the Court might agree with the insightful dissent of Moldaver J at the Court of Appeal.  I was wrong about that.  I take solace in my company (Moldaver, Deschamps, Rothstein and Cromwell JJ).  I also take solace in the fact I still think I am right. 
In Mack's Criminal Law Bulletin, Issue 1, I wrote at length about the Court of Appeal's ruling in Sarrazin, 2010 ONCA 577.  I also blogged about the curative proviso in a recent post: The Curative Proviso, to apply or not to apply, that is the question...  In my Bulletin I was of the view that Moldaver JA (as he then was) got it right in his dissent.  The trouble with the majority's ruling at the Court of Appeal and Supreme Court was succinctly encapsulated by Cromwell J:
Respectfully, this is an elegantly understated way of expressing what to me is an unacceptable proposition: appellate courts should assume that a jury might relax the standard of proof of causation because the alternative would be to let the accused walk. I cannot agree, on such speculative grounds, to set aside a jury verdict of 12 citizens who are presumed to have honoured their oath and who received impeccable legal instructions on the very issue in contention [para 52].
This is an important point.  As I argued in Issue 1 of my Bulletin, there was no complaint here about the charge to the jury on causation; there were no questions on that issue from the jury.  Given that the jury is an integral part of our criminal justice system, it is "an unacceptable proposition" to find they may have been subconsciously impacted by this error. 
In the end I maintain my view which was eloquently offered similarly by Cromwell J: 
No one questions that the trial judge gave the jury complete and accurate instructions on causation. The jury’s verdict necessarily means that they were persuaded beyond a reasonable doubt that the gunshots caused the deceased’s death. The admitted error was failing to provide instructions on attempted murder. Those instructions would only have been relevant if the jury had a doubt about causation, which, as their verdict unambiguously attests, they did not. In those circumstances, in my respectful opinion, the error clearly had no impact on the verdict [para 41]; [emphasis added].
The error was a serious one.  Yet, it in fact had no impact.  The verdict could not possibly have been different.  The Court should have, with respect, respected the jury's verdict.
DG Mack

New & Notable: Judges are Presumed to Know the Law Even if they Don't Tell us

In the recent case of R v Chevers, 2011 ONCA 570 the Ontario Court of Appeal, for the second time this year, has unequivocally rejected the notion that trial judge's must articulate the law upon which they rely in rendering their judgements.  
Christopher Chevers was convicted by Scott J, sitting without a jury, of attempted murder and two other firearm offences.  The central issue at trial was identity and that issue relied almost entirely on the victim; the victim's credibility was hotly contested by the defence who pointed out many of lies told by the victim under oath.  
Chevers was convicted and appealed.
On appeal Chevers argued that the "trial judge was mandated to give himself a Vetrovec warning of the danger of acting on the victim's evidence without other evidence of confirmation" [para 2].  In rejecting this argument a unanimous Court of Appeal explained that a Vetrovec warning "is intended to alert juries to the dangers of relying on the evidence of certain witnesses" [para 4]; [emphasis added].  The court continued:
Judges know the risks in relying on the testimony of witnesses like this victim; thus there is no requirement that a judge sitting alone recite a Vetrovec caution in his or her reasons for judgment [para 4]; [references omitted]. 
Earlier this year in R v Snyder, 2011 ONCA 445 the Court of Appeal rejected the same argument holding that to require that "judges articulate those dangers in their reasons...would be pure formalism" [para 24].

DG Mack