Ont. CA finds incompetent representation during trial undermined defence, orders new trial

One of the appellant’s two grounds of appeal was the ineffective assistance from trial counsel. The other was the adequacy of the interpretation at trial. The case turned on the first, and the Court of Appeal set aside the convictions and ordered a new trial.

The appellant testified that he had an audio recording of a telephone conversation between the complainant and the appellant’s uncle, the substance of which the appellant and complainant had conflicting versions. The appellant used his cell phone to secretly record the call, which his wife conducted in his presence on speakerphone. The appellant provided the recording to his trial counsel, but no record was produced at trial, and the lawyer said he had no recollection of receiving it. Trial counsel stated in an affidavit that he had “very little memory of any of his interactions with the appellant” because of “stressful issues” in his personal life.

In R. v. Fiorilli, 2021 ONCA 461, the Ontario Court of Appeal set out a three-part test to determine appeals claiming ineffective assistance of counsel. The appellant must establish “the facts on which the claim is grounded,” the “incompetence of the representation,” and “a miscarriage of justice” resulting from the incompetent representation.

The factual component was satisfied because, although the trial counsel would have learned about the recording during the appellant’s examination in chief, he had no recollection of asking the appellant about the recording.

For the second part, the “performance component,” the appellant met the onus because “a reasonably competent counsel would have made an effort to obtain the … recording from the appellant as soon as they learned of its existence and would have gone on to review its contents.” The court added that there is no strategic or tactical reason for a lawyer not to obtain a copy of the recording once he learned of it.

The court found that these mistakes by trial counsel created prejudice because the lawyer could have cross-examined the complainant more effectively on her version of events. This may have allowed the appellant to undermine the complainant’s evidence in two areas the trial judge had said led her to conclude that the complainant was credible. It would have also bolstered his testimony on an issue that the trial judge used to find he was not credible.

Typically, in appeals involving a claim of ineffective assistance of trial counsel, an expert is brought in to testify on the applicable standard of care. However, says Ciarabellini, the appeal is unique in that no expert testimony was necessary.

“This was so obvious; the expert was not needed… This wasn't a scenario where a lawyer made a calculated decision that just didn't play out well. No, the lawyer was just asleep at the wheel.”

Gavriel Swayze, who also represented the appellant in the appeal, says the issues of ineffective assistance of counsel overlapped with the problems with interpretation. The trial counsel did not find an interpreter to ensure his conversations with the appellant would be understood by both parties.

“Not quite a death by a thousand cuts, but all these issues just made all the others worse and led to this unfair conviction,” says Swayze. “The decision really focusing on ineffective assistance of counsel – yes, it’s very helpful for setting a precedent, but it also undermines the other very serious issues that also lead to the unfair conviction, such as the interpretive matters.”

The only two witnesses at trial were the complainant and the appellant. While the complainant testified in English, the appellant used a Tamil interpreter. He argued on appeal that the quality of the interpretation fell below minimum standards guaranteed by s. 14 of the Charter, which gives parties and witnesses to court proceedings the right to an interpreter. The Court of Appeal admitted the appellant’s fresh evidence, which identified several translation errors. But the court rejected this ground of appeal, noting that the interpretative errors were “relatively minor” and “often corrected or clarified later on.”

One interpretive issue was the trial judge’s conflation of the appellant's two meetings with his lawyer. The appellant said that he had signed papers for a condo sale under duress at one meeting due to his wife’s threats. During a second meeting, he revealed this to the same lawyer, who told him he had to pursue the issue in court. The judge misunderstood the appellant as testifying that this all occurred during one meeting and referred to the exchange as one of three examples in the appellant’s evidence that she found unbelievable in explaining why she did not find his testimony credible.

The appellant and the complainant were married in 2011. The latter was a Canadian citizen and sponsored the former’s application to immigrate to Canada. He arrived in 2012, and they had a child in March 2014.

In October 2014, the couple had a falling out, and the complainant moved out of their condo. The complainant said that the appellant threatened to poison their son. He said the falling out was over the appellant’s decision to invite the complainant’s estranged brother to a ceremony for their son.

After she left, the appellant rented an apartment, and she arranged for the sale of the condo. The appellant said he only agreed to the sale because the complainant threatened to falsely accuse him of assault if he refused.

They soon reconciled and resumed cohabitation, but the complainant said the appellant then threatened, physically assaulted, and eventually sexually assaulted her. He was later charged and convicted of sexual assault.

The complainant moved out of the apartment in May 2015. She said she left after the appellant threatened to kill her and their son. She went to the police, who charged the appellant with uttering death threats, for which he was convicted.

According to the appellant, the complainant had moved out over an argument about attending a religious service, the fact that he was not contributing to household expenses, and had not fulfilled a promise to deposit his share of the condo sale into an RESP account. He said the complainant had called his uncle to demand repayment for $50,000 she had spent sponsoring the appellant’s visa application, and he also claimed that she struck him before she left with their son.

The complainant denied demanding money from the uncle but said she had called to complain that the appellant was pressuring her to have sex and threatening to make her watch him have sex with other women.

The complainant and appellant testified at trial, and the trial judge found the complainant wholly credible and called the appellant’s evidence “illogical and unbelievable.”