Ineffective representation cited in Court of Appeal sex assault decision

By John L. Hill

Law360 Canada (May 10, 2023, 8:21 AM EDT) --
John Hill
John L. Hill
There is something worse for a criminal defence lawyer than losing a jury trial; it is having the Court of Appeal conclude that a new trial must be ordered when the assistance of counsel is found to be ineffective. Yet that is what happened when Ontario Court of Appeal Justice Jill M. Copeland, writing on behalf of a three-judge panel set aside a conviction highly critical of the appellant’s trial counsel (R. v. Blake 2023 ONCA 220).

Neville Lee Blake, a Black man, was convicted of sexual assault causing bodily harm, unlawful confinement, choking and uttering a death threat. The victim was a white female sex worker. The violence was alleged to have taken place when a police cruiser entered a parking lot where Blake and the escort were conducting business. Blake told his trial lawyer that there was no assault; the sex worker panicked on seeing police nearby and worried because there was an outstanding warrant. Further, Blake maintained, the complainant was lying and merely repeating allegations she had heard from other prostitutes.

Competent counsel would have taken the client’s instructions and formulated a theory of the defence. That would include establishing if a warrant for the complainant existed and, if not, having the complainant admit the statement in evidence to challenge her credibility. Finally, when a Black man is charged with assaulting a white woman, trial counsel should research how to effectively bring a challenge for cause when a prospective juror was about to be sworn in.

At the time of jury selection, defence counsel refused to bring a challenge to jurors based upon the R. v. Parks, 15 OR (3d) 324 decision. Counsel felt that such a move would be akin to accusing jurors of racism. This was wrong according to Justice  Copeland. R. v. Chouhan 2021 SCC 26 was cited to affirm that such a challenge does not imply racism but is meant to “foster candid reflection about their ability to consider evidence.” Moreover, trial counsel seemingly was unaware that s. 640(2) would allow a challenge for cause to be made in the absence of jurors and potential jurors from the courtroom.

The defence counsel at trial did not urge his client to move to challenge prospective jurors for cause simply because it was not his standard practice to do so and his cultural insensitivity in declaring “it wasn’t really my issue.” Counsel ought to have been aware that in cases where a Black man is accused of assaulting a white woman, the court has noted that there is increased risk of partiality based on conscious or unconscious racial bias (R. v. D.C. [1999] O.J. No. 3568).

Trial counsel also seemed to underestimate the prejudice that could be done when in trying to attack the complainant’s credibility he elicited evidence that his client had been accused by five other women of attacking them. Rather than casting doubt on the complainant’s truthfulness, the effect was to cast doubt on the accused’s character. The Court of Appeal held that even the trial judge’s warning was not enough to mitigate the harm done. The defence pushed on having the complainant admit that “every single girl that claimed he had hurt her said the same thing.”

Reasonably competent counsel would also have sought out disclosure to ascertain if the complainant was subject to an arrest warrant. It was only after the complainant finished testifying that counsel asked for this disclosure. Ultimately the information provided by the client proved to be accurate but once admitted it had to be noted that the jury should be cautioned in accordance with Browne v. Dunn (1893), 6 R. 67 (H.L.), since that matter was not raised in cross-examination of the complainant.
In reading the Court of Appeal decision, one gets the impression that Blake’s defence was done on the fly without adequate preparation and inadequate knowledge of criminal procedure. The defence at trial had demonstrated ineffective representation by breaching the performance component (representation outside reasonable professional assistance) and the prejudice component (assistance resulting in an unfair trial or unreliable verdict): R. v. K.K.M. 2020 ONCA 736, R. v. Joanisse, [1995] O.J. No. 2883, R. v. Fiorilli 2021 ONCA 461 and R. v. G.D.B. [2000] 1 S.C.R. 520.

Although it is unfortunate to see defence counsel being so roundly criticized, there are positives that one can appreciate stemming from this case: (1) that we must be thankful there are competent criminal lawyers acting on the appeal who are unaccepting of less than adequate performance of their peers; (2) it is not acceptable for a lawyer to decide trial strategy with only limited input from the client; and (3) that even in these days of political correctness it is no longer a lawyer’s call to avoid a challenge for cause because it is not his issue.

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. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

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