Case information
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35089
W.E.B. v. Her Majesty the Queen
(Ontario) (Criminal) (By Leave)
(Publication ban in case) (Publication ban on party)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2014-01-30 | Transcript received, (44 pages) | |
| 2014-01-20 | Appeal closed | |
| 2014-01-17 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2014-01-17 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2014-01-16 |
Judgment on the appeal rendered, CJ LeB Abe Ro Cro Mo Wa, The appeal from the judgment of the Court of Appeal for Ontario, Number C53146, 2012 ONCA 776, dated November 14, 2012, was heard on January 16, 2014, and the Court on that day delivered the following judgment orally: MOLDAVER J. — The sole issue in this appeal is whether the appellant’s trial counsel provided him with ineffective assistance, thereby resulting in a miscarriage of justice. The appellant challenges the competence of his trial counsel on a number of grounds, the most serious being that she prevented him from testifying at trial. The Court of Appeal rejected the appellant’s submissions (2012 ONCA 776 (CanLII)). While the court did not specifically address all of the appellant’s many, and continually growing list of ineffective assistance claims, it found that they either lacked an evidentiary foundation or did not result in prejudice. In so concluding, the court carefully considered the record at trial, along with the fresh evidence filed on the appeal, and applied the correct legal principles. It made findings of fact based on this record. In making these findings, the Court of Appeal acted as a court of first instance. Its findings, like those of a trial judge, are entitled to deference (see R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777, at para. 17). The Court of Appeal’s findings are supported by the record. Contrary to the appellant’s submissions, the court found that he had agreed with counsel that he would not testify. The court also rejected the appellant’s argument that trial counsel had acted incompetently by failing to prepare him to testify. The court noted that the appellant could have been granted an adjournment had there been any suggestion he wanted to testify, and that extensive preparation was unnecessary. Moreover, the court found that trial counsel had not acted ineffectively in failing to call the father of one of the complainants as a witness because there was no evidence before the court, other than the appellant’s assertion, indicating what this witness would say or how he could be located. Finally, the Court of Appeal found that while counsel’s cross-examination of one of the complainants was “perhaps not stellar” (at para. 24), it did not fall outside the realm of reasonable professional assistance. In sum, we see no error in the Court of Appeal’s analysis or conclusion. For these reasons, we would dismiss the appeal. Dismissed, no order as to costs |
|
| 2014-01-16 | General proceeding, Questionnaire Following the Hearing - Publication Ban - Holly Loubert (Respondent) | Her Majesty the Queen |
| 2014-01-16 | General proceeding, Questionnaire Following the Hearing - Publication Ban - Michael A. Crystal (Appellant) | W.E.B. |
| 2014-01-16 |
Hearing of the appeal, 2014-01-16, CJ LeB Abe Ro Cro Mo Wa Judgment rendered |
|
| 2014-01-16 | Appellant's condensed book, (Book Form), Filed in Court | W.E.B. |
| 2014-01-08 | Notice of appearance, Michael A. Crystal and Heather Cross will be appearing. | W.E.B. |
| 2013-11-21 | Notice of hearing sent to parties | |
| 2013-11-19 | Appeal perfected for hearing | |
| 2013-11-19 |
Appeal hearing scheduled, 2014-01-16 Judgment rendered |
|
| 2013-11-15 | Respondent's book of authorities, (Book Form), Completed on: 2013-11-15 | Her Majesty the Queen |
| 2013-11-15 | Respondent's record, (Book Form), Completed on: 2013-11-15 | Her Majesty the Queen |
| 2013-11-15 | Respondent's factum, (Book Form), CD to come (rec'd 2013-11-22), Completed on: 2013-11-25 | Her Majesty the Queen |
| 2013-11-06 | Order on motion for leave to intervene, (By ABELLA J.) | |
| 2013-11-06 |
Decision on the motion for leave to intervene, Abe, UPON APPLICATION by Linda Christie for an extension of time to apply for leave to intervene and for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for an extension of time to apply for leave to intervene is granted. The motion for leave to intervene is dismissed. Dismissed |
|
| 2013-11-06 | Submission of motion for leave to intervene, Abe | |
| 2013-10-31 | Reply to the motion for leave to intervene, (Letter Form), from Anil K. Kapoor dated 2013-10-31, Completed on: 2013-10-31 | Linda Christie |
| 2013-10-30 | Response to the motion for leave to intervene, (Letter Form), from Henry S. Brown, Q,C, dated 2013-10-30, Completed on: 2013-10-30 | W.E.B. |
| 2013-10-28 | Response to the motion for leave to intervene, (Letter Form), from Holly Loubert dated 2013-10-28, Completed on: 2013-10-28 | Her Majesty the Queen |
| 2013-10-21 | Motion for leave to intervene, (Book Form), motion for extension requested - rec'd 2013-10-24, Completed on: 2013-10-29 | Linda Christie |
| 2013-10-16 | Order on motion to extend time | |
| 2013-10-16 |
Decision on motion to extend time, to serve and file the appellant's factum, record and book of authorities to September 20, 2013., Reg Granted |
|
| 2013-10-16 | Submission of motion to extend time, Reg | |
| 2013-10-09 | Response to motion to extend time, Completed on: 2013-10-09 | Her Majesty the Queen |
| 2013-10-09 | Motion to extend time, to serve and file the appellant's documents, Completed on: 2013-10-09 | W.E.B. |
| 2013-09-20 | Appellant's book of authorities, (Book Form), extension of time rec'd 2013-10-09, Completed on: 2013-10-11 | W.E.B. |
| 2013-09-20 | Appellant's record, (Book Form), Vol. 1 and 2 - extension of time rec'd 2013-10-09, Completed on: 2013-10-11 | W.E.B. |
| 2013-09-20 | Appellant's factum, (Book Form), motion for extension of time rec'd 2013-10-09 - redacted version 2013-10-18. Another redacted version submitted electronically ONLY - 2013-12-10, Completed on: 2013-10-11 | W.E.B. |
| 2013-06-03 | Notice of appeal, Completed on: 2013-06-03 | W.E.B. |
| 2013-05-06 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2013-05-03 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2013-05-03 | Judgment on leave sent to the parties | |
| 2013-05-02 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C53146, 2012 ONCA 776, dated November 14, 2012, is granted without costs. Granted, without costs |
|
| 2013-04-04 | Correspondence received from, Holly Loubert dated April 4/13 | Her Majesty the Queen |
| 2013-04-03 | Correspondence received from, Henry S. Brown, Q.C. dated Apr. 3/13 together with a judgment of the Court of Appeal of Ontario in R. v. Eroma 2013 ONCA 194 (motion re 32(2) requested) | W.E.B. |
| 2013-03-25 | All materials on application for leave submitted to the Judges, F Ro Mo | |
| 2013-02-11 | Applicant's reply to respondent's argument, Completed on: 2013-02-11 | W.E.B. |
| 2013-02-01 | Respondent's response on the application for leave to appeal, Completed on: 2013-02-01 | Her Majesty the Queen |
| 2012-12-20 | Letter acknowledging receipt of an incomplete application for leave to appeal and without formal Court of Appeal order | |
| 2012-12-19 | Book of authorities | W.E.B. |
| 2012-12-17 | Application for leave to appeal, Final CA Order missing (rec'd Jan.8/13), Completed on: 2013-01-09 | W.E.B. |
| 2012-11-19 | Notice of application for leave to appeal, Completed on: 2012-11-19 | W.E.B. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| W.E.B. | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: W.E.B.
Counsel
Heather Cross
309 Cooper Street
Suite 310
Ottawa, Ontario
K2P 1P7
Telephone: (613) 594-5490
FAX: (613) 594-5225
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Her Majesty the Queen
Counsel
720 Bay St., 10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-4335
FAX: (416) 326-4656
Email: holly.loubert@ontario.ca
Agent
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Criminal law - Trial - Ineffective assistance of counsel - Accused not testifying at trial - Whether a miscarriage of justice occurred because the accused did not give informed consent to trial counsel’s decision to refrain from calling him as a witness in his own defence - Whether the Court of Appeal erred in ascribing any weight to the accused’s “agreement” not to testify - Whether the Court of Appeal erred in finding that the accused’s acquiescence in trial counsel’s decision to refrain from calling him to testify constituted informed consent.
The appellant was convicted of three counts of sexual assault, two counts of sexual touching and one count of invitation to sexual touching. The complainants were the appellant’s step-granddaughter and step-daughter as well as the daughter of a former girlfriend of the appellant.
A single trial was held in respect of the allegations by all three complainants, in front of a judge alone. The appellant retained and was represented by trial counsel. No witnesses were called by the defence at trial and the appellant did not testify.
The appellant appealed from his conviction on the ground of ineffective assistance of counsel. He argued that his trial counsel misrepresented her experience with sexual assault trials; that she did not have an adequate understanding of criminal law to enable her to properly handle his defence; that she failed to subpoena witnesses, contrary to his instructions; that she failed to enter a promissory note, which formed an essential part of his defence, into evidence; that she refused to ask questions of Crown witnesses that he instructed her to ask; and that she refused to permit him to testify in his own defence. The appellant submitted that his trial counsel’s incompetence led to a miscarriage of justice. The Court of Appeal dismissed his appeal.
Lower court rulings
Ontario Superior Court of Justice
Conviction: three counts of sexual assault, two counts of sexual touching and one count of invitation to sexual touching
Court of Appeal for Ontario
C53146, 2012 ONCA 776
Appeal from conviction dismissed
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
Not available