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| John L. Hill |
That was the situation defence counsel faced in the prosecution of Vincent Bauer when he went for trial in the Ontario Court of Justice on Jan. 10, 2020. The appeal to the Superior Court was heard on Jan. 19, 2022. Bauer had been sentenced to 21 months imprisonment followed by two years’ probation. With provincial parole or statutory release taking effect, one must assume that the jail term had been served but the conditions attached to his probation were still in place. An appeal was worth a shot but on what grounds? The sole issue for the appeal judge was that Bauer had been ineffectively served by his trial lawyer.
The facts were simple. The complainant said that twice in May 2019 and then once more in May, while sharing a bed with her, Bauer woke her up and forced non-consensual vaginal intercourse on her. The accused’s position was that he never slept with the complainant and certainly did not force himself upon her. At trial, the complainant was cross-examined but stood her ground. Defence counsel, on consulting with the accused, chose to not call Bauer to put his side of the story before the court. Instead, he suggested Bauer was subject to sleepwalking and if intercourse occurred it was without the mens rea of his client. The only problem was that defence had no expert to establish an automatism defence.
On appeal, Bauer swore that he was never properly instructed by his lawyer on how to testify or participate in a practice cross-examination. After all, he was scared and had been counselled that he should not testify. Further he never told his lawyer he suffered from sleepwalking. He maintained he just never committed the crime.
Appellate counsel were appointed and the appeal proceeded on the sole ground of ineffective representation by trial counsel. It was revealed in the affidavit filed by trial counsel that the accused waffled in response to questioning about his relationship with the complainant, once saying he had intimate relations and then denying it. The decision was made that Bauer not testify.
After all, the lawyer cannot knowingly allow perjured evidence to be entered as evidence. Trial counsel also swore he was not aggressive in his cross-examination because the complainant did not go into detail and he was leery that she might expand on her accusations if pressed. The trial lawyer also admitted the sleepwalking or automatism defence was brought up without a real basis and without expert substantiation.
Counsel on appeal argued that ineffective assistance of counsel had been made out. At paragraph 38 of the judgment on appeal (R. v. Bauer 2022 ONSC 1467) the facts disclosed that “trial counsel failed to cross-examine on crucial points of evidence, proffered defences which were not in accordance with [the client’s] instructions, and did not give him adequate advice about whether to testify in his own defence.”
The judge hearing the appeal, Justice Maria Carroccia, criticized trial counsel’s failure to put the accused’s version of events to the complainant when she testified. If his client later testified, it would be in contravention of the rule in Browne v. Dunn (1893) 6 R. 67 (H.L) that requires defences raised to be put to Crown witnesses. Further, it was improper to raise a defence such as automatism without the basis for substantiation. Justice Carroccia was bound by the decision in R v. G.D.B. [2000] 1 S.C.R. 520, where the court held at paragraph 34: “Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice.”
In this case, however, there is reason to believe that the ineffective assistance undermines the appearance of trial fairness and the reliability of the verdict. This caused a miscarriage of justice resulting in the quashing of the three counts of sexual assault and a new trial ordered.
To avoid such a nightmare, defence counsel must engage in adequate preparation and document all steps taken.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.
Photo credit / sdecoret ISTOCKPHOTO.COM
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