Court of Appeal

Nova Scotia Court of Appeal

Citation: R. v. Twinley, 2023 NSCA 9

Date: 20230202

Docket: CAC 501694

Registry: Halifax

Between:

Jonathan Twinley

Appellant

v.

His Majesty the King

Respondent

Judge:	The Honourable Justice J. E. (Ted) Scanlan
Appeal Heard:	November 30, 2022, in Halifax, Nova Scotia
Subject:	Ineffective assistance of counsel, Fresh evidence
Summary:	The appellant appealed a conviction on a single count of sexual assault (s.271) He applied to adduce fresh evidence arguing ineffective assistance of counsel because his counsel did not call a witness that the appellant says should have been called. While the evidence was admitted provisionally for the purpose of the hearing that application was dismissed. The decision not to call the witness in question was a strategic decision made by trial counsel in consultation with the appellant. It is not for the court to second guess counsel's strategic decisions. Deference is owed to trial counsel and it is not enough to show that there were alternative strategies available. The court strategy adopted by trial counsel was not unreasonable
Result:	Fresh Evidence application dismissed; Appeal dismissed.

Nova Scotia Court of Appeal

Citation: R. v. Twinley, 2023 NSCA 9

Date: 20230202

Docket: CAC 501694

Registry: Halifax

Between:

Jonathan Twinley

Appellant

v.

His Majesty the King

Respondent

Judges:	Beveridge, Scanlan, Beaton, JJ.A.
Appeal Heard:	November 30, 2022, in Halifax, Nova Scotia
Held:	Appeal dismissed, per reasons for judgment of Scanlan, J.A.; Beveridge and Beaton, JJ.A. concurring
Counsel:	J. Brian Church, K.C. and Eugene Tan, for the appellant Mark A. Scott, K.C., for the respondent

 

Order restricting publication — sexual offences

       486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

          (a) any of the following offences:

          (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

          (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

 

Order restricting publication — victims and witnesses

 

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Reasons for judgment:

Introduction

 

[1]             The appellant was convicted of the sexual assault of a co-worker (s.271 of the Criminal Code R.S.C. 1985, c.46). The trial judge found the complainant’s testimony on the core elements convincing. The appellant testified, and the trial judge applied the “W.(D.)”  (R. v. W.(D.) [1991] 1 S.C.R. 742) analysis as she considered the evidence and the issue of whether the Crown had proven the guilt of the appellant beyond a reasonable doubt.

[2]             The appellant appealed his conviction, and the Summary Conviction Appeal Court deferred to the trial judge’s credibility findings, and dismissed the appeal, concluding the trial judge was engaged with the live issues and applied the correct legal analysis.

[3]             At trial and on the summary conviction appeal the appellant was represented by the same counsel. That counsel also initially represented the appellant on this appeal although that has changed. The appellant, now having different counsel, argues he had ineffective assistance of counsel at trial. He applies to introduce fresh evidence in an effort to establish his argument.

[4]             For the reasons set out below I am satisfied the appeal should be dismissed.

Analysis

Leave to appeal

[5]             As a preliminary matter I note this is an appeal pursuant to s. 839 of the Criminal Code, being an appeal from a Summary Conviction Appeal Court.  Leave is therefore required.  The respondent says that because the same counsel represented the appellant at trial and on the Summary Conviction Appeal leave should be granted. I agree.

[6]             The sole issue is the admissibility of the proposed fresh evidence tendered to establish trial counsel’s ineffective assistance.

Fresh Evidence Application

[7]             The appellant applies to have fresh evidence admitted on this appeal.  While that evidence was admitted provisionally during the hearing of the appeal, I am satisfied it is not admissible.

[8]             The proposed fresh evidence is set out in the affidavits of the appellant and his friend Brad Balser. Mr. Balser was an employee working for the same employer as the appellant.  The appellant says his trial counsel knew of Mr. Balser and the evidence he could give. He says he instructed his trial counsel to call Mr. Balser as a witness, but counsel did not call Mr. Balser.  The appellant submits the evidence of Mr. Balser could have had an impact on the verdict.

[9]             In the appeal before us the fresh evidence is directed to the regularity of the process, that is, the conduct of trial counsel.

[10]         Admissibility of fresh evidence is governed by the well established principles set out in R. v. Palmer, [1980] 1S.C.R. 759. In R. v. Wolkins, 2005 NSCA 2, Cromwell J.A. (as he then was) referenced two types of fresh evidence; first, evidence that is directed at an issue decided at trial and second, evidence directed to other matters that go to the regularity of the process.

[11]         Trial counsel submitted an affidavit in response to the allegation of ineffective assistance of counsel. He was cross-examined on that affidavit. The appellant and Mr. Balser also submitted affidavits and were cross-examined on them.

[12]         The appellant’s affidavit describes his communications with trial counsel about the information Mr. Balser had that could be used to cross-examine the complainant. Mr. Balser’s affidavit confirms the details of this information.

[13]         Trial counsel explained that the decision to not call Mr. Balser was a strategic one made by him in consultation with the appellant. Counsel said at trial he focused on the complainant’s credibility and reliability. Counsel said he knew generally what Mr. Balser had to offer in terms of testimony and he told his client it was unlikely he would call Mr. Balser. That strategy was evidenced early in the trial process as the record shows trial counsel informed the court, in the presence of his client, there would be two defence witnesses, and neither was Mr. Balser.

[14]         The proffered evidence of Mr. Balser addresses whether the complainant made the complaint to get out of work and may have harboured homophobic prejudices against the appellant. There were also vague references to the general character of the complainant.

[15]         Counsel said strategically he did not want to clutter the record with evidence from Mr. Balser.   Counsel said he consulted with his client throughout the trial, and the record confirms counsel’s assertion that he asked to adjourn so he could consult with his client before closing his case.  He said the appellant agreed with the strategy not to call Mr. Balser.  As part of that final discussion counsel said he opined to his client that he felt there was little likelihood of conviction.

[16]         I am satisfied trial counsel and the appellant were aware of the evidence Mr. Balser might provide, but made a strategic calculation to not use that evidence.  I am satisfied the proffered evidence could not be said, to a reasonable degree of probability, to have had a material effect on the outcome of the trial. For the above noted reasons the fresh evidence is not admitted.

[17]         The parties are in agreement as to the standard of review applicable to the issue of ineffective assistance of counsel (See R. v. Hobbs, 2020 ABCA 156 paras.  22-23 and more recently in this court R. v. Murphy, 2022 NSCA 26 in paras. 76-77). The parties have also noted the deference owed to trial counsel and their professional judgment. It is not enough to demonstrate other counsel would have conducted the trial differently. The appellant must show there is a real possibility he would not have been convicted with competent counsel (Hobbs, para. 23). For an appellant to succeed they must show: 1) the facts on which the ineffectiveness claim is based on a balance of probabilities; 2) that the representation by trial counsel amounted to incompetence on a reasonable standard; 3) that the incompetence resulted in a miscarriage of justice.

[18]         The test for ineffective assistance of counsel is a stringent one, proceeding on a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.  The assessment does not involve asking whether counsel could have done a better job, or if the job could have been done differently. The facts upon which the ineffectiveness claim is based are weighed on a balance of probabilities. Competence is judged on a reasonableness standard. A conviction will be overturned only if counsel's conduct resulted in a miscarriage of justice. (R. v. Murphy, 2022 NSCA 26). Counsel’s ineffectiveness must be shown to have undermined the appearance of the fairness of the trial or the reliability of the verdict.

[19]         Trial counsel’s affidavit references numerous pretrial and mid-trial discussions with the appellant wherein they discussed strategy and the evidence including the possible evidence of Mr. Balser. Counsel was convinced the key issues at trial were the credibility of the complainant and a weighing of all the evidence, applying the W.(D.) framework.

[20]         The appellant trusted counsel, who had represented him successfully in a prior, unrelated matter. As I already noted, he was also retained for the summary conviction appeal and initially on the appeal to this Court.

[21]         The disclosure materials suggested the appellant and the complainant were in the same building on the morning of the alleged incident, but counsel felt that the issue of timing presented an opportunity to argue the parties were not in the building at the same time.

[22]         The appellant claims his approach to the case was that the complainant was homophobic and was looking for an excuse to get out of work.  He wanted to attack the complainant’s character, using Mr. Balser’s evidence to advance that attack. Counsel resisted that approach, but left the door open to revisiting it during the trial. Counsel made the point that there was a scarcity of evidence that the complainant avoided work, and insufficient admissible evidence to prove the character flaws asserted by Mr. Balser.

[23]         Counsel advised the appellant that his proposed strategy was to focus on inconsistencies, with “particular focus on the timing of the assault”. This would require the appellant to testify at his trial, and counsel says he did not want to clutter the record with what he considered largely irrelevant evidence, making it clear to his client that he did not see Mr. Balser’s evidence as being likely relevant or helpful. The final decision on whether Mr. Balser would be called was to be made after the complainant and accused’s evidence was complete.

[24]         Counsel said he considered the case after the evidence was in and discussed the case with the appellant. He made recommendations to his client in terms of the limits of his examination of the complainant and whether to call Mr. Balser. Counsel denied Mr. Twinley directed him to call Mr. Balser or took issue with the advice given. He says: “Mr. Twinley instead accepted my advice and we advanced the defence accordingly.”

[25]         Trial counsel said he explained what his strategy was and talked with his client prior to and during the trial proper. The record suggests that at the end of the trial he adjourned to again discuss the case with his client. The appellant retained that same counsel to represent him on the summary appeal, and initially retained him to represent him on the present appeal.  All this suggest the client had confidence in his trial counsel and the appellant was aware of and consented to the approach.

[26]         An appeal based on an assertion that trial counsel was ineffective is not simply a chance to have another trial because other counsel may have adopted a different strategy or asked different questions. On appeal the issue is not whether all the questions, or the right questions were asked (R. v. Barrett, 2022 NSCA 3 para. 32) or whether there was a different strategy that could have been adopted.

[27]         Courts have recognized that no two lawyers will defend an accused in the same way (for example see: R. v. White, [1997] 32 O.R. (3d) 722 (OCA)). For an appellant to succeed the underpinnings of incompetence and prejudice must be established on a balance of probabilities. In the context of the present case it is not enough for the appellant to show there was another witness not called by trial counsel.

[28]         In the words of Judges of the Manitoba Court of Appeal in R. v. Hjorleifson, 2022 MBCA 22, I am: 

[11]…of the view that the accused (appellant) has not established that “there is a real probability that the result of the proceedings would have been different but for the presumed incompetence : (Le at para 183). Simply put the prejudice component of the test has not been met and a miscarriage of justice has not occurred.

Disposition

[29]         I would grant leave to appeal, dismiss the application to adduce fresh evidence and dismiss the appeal.

 

                                                Scanlan, J.A.

Concurring:

                   Beveridge, J.A.

 

                   Beaton, J.A.