R. v. Zock

R. v. Zock Collection Decisions of the Court of Appeal Date 2025-07-07 Neutral citation 2025 ONCA 483 Docket numbers COA-23-CR-0011 Judges Trotter, Gary T.; Zarnett, Benjamin; George, Jonathon C. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Zock, 2025 ONCA 483[1] DATE: 20250707 DOCKET: COA-23-CR-0011 Trotter, Zarnett and George JJ.A. BETWEEN His Majesty the King Respondent and Andrew Zock Appellant Owen Wigderson, for the appellant Emily Bala, for the respondent Heard: October 22, 2024 On appeal from the conviction entered on April 22, 2022 by Justice Pamela L. Hebner of the Superior Court of Justice, sitting without a jury. Zarnett J.A.: I. Overview [1] The appellant was convicted, after trial by judge-alone, of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). The main issues at trial were whether the complainant was incapable, due to her level of intoxication, of consenting to sexual activity with the appellant and, if she was capable, whether she did consent. The trial judge found the complainant was incapable of consenting to the sexual activity in question. [2] The appellant challenges his conviction arguing, among other grounds of appeal, that he received ineffective assistance from his trial counsel regarding the mode of trial that was chosen. [3] For the reasons that follow, the ineffective assistance of counsel ground of appeal succeeds. I would set aside the conviction and order a new trial before a judge and jury. [4] Election of the mode of trial is a fundamental defence decision. It is one that must be made by the accused person. The role of defence counsel in respect of that type of decision is to give competent advice and act on proper instructions, not to make the election without such instructions. Where the accused person’s right to elect the mode of trial is lost because counsel exercised it without informed instructions, a new trial may be ordered if, in the circumstances, the loss of the right to choose the mode of trial amounted to a miscarriage of justice. [5] The appellant has shown on a balance of probabilities that he was never told by trial counsel that he had a right to a jury trial, that he never gave instructions to elect trial by judge-alone, and that the election of a judge-alone trial was made by trial counsel without the appellant’s instructions. I prefer the evidence of the appellant on these issues to that of trial counsel whose assertion that he gave undocumented advice and received undocumented instructions on the mode of trial is unsupported by any notes and is contradicted by an express statement he made to the court, after the date he says he received instructions, that he still needed instructions to elect the mode of trial. [6] The Crown properly concedes that if the appellant was never told that he had the right to a jury trial, and a judge-alone trial was chosen without his informed instructions, trial counsel’s performance fell below the acceptable level of performance required of defence counsel. [7] The appellant has also established, on a balance of probabilities, that had he been told of his right to elect, there is a reasonable possibility he would have chosen trial by jury. The loss of the right to elect trial by jury in this case constitutes a miscarriage of justice. [8] As for the other grounds of appeal, it is unnecessary to address those which, if successful, would result in a new trial, since that relief follows from success on the ineffective assistance ground.[2] I briefly address and explain why I would reject the one ground of appeal that, if successful, would result in an acquittal by this court, namely the appellant’s argument that the verdict was unreasonable because no reasonable and properly instructed trier of fact could have concluded that the complainant was incapable of consenting to the sexual activity in question. II. The Ineffective Assistance of Counsel Ground of Appeal A. Factual Context Fresh Evidence [9] Fresh evidence relating to the ineffective assistance claim was filed, consisting of affidavits of the appellant and trial counsel, transcripts of cross-examinations conducted of each, and exhibits that were marked on the examinations. [10] The interests of justice favour admitting fresh evidence where it is necessary to establish, and to challenge, allegations of ineffective assistance: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at pp. 43-44. [11] The Crown consents to the admission of the fresh evidence. I would admit the fresh evidence and I take it into account in what follows. Background [12] The appellant was arrested on a charge of sexual assault in September 2017. The charge arose from a sexual encounter between the appellant and the complainant early in the morning of September 23, 2017 in a hotel room where the appellant had been staying while working in Windsor. The appellant had first met the complainant several hours earlier at a bar in Windsor and had travelled back to his hotel room with her. [13] The appellant was released by the police after his arrest and directed to appear in court on November 2, 2017. The November 2, 2017 Meeting [14] The appellant and trial counsel first met on November 2, 2017, at the courthouse in Windsor just before the appellant’s first court appearance. The key factual dispute concerns what occurred at this meeting. Trial counsel says there was a discussion about the mode of trial and he was given instructions by the appellant to elect a judge-alone trial on that date. The appellant says this never occurred. i. The Appellant’s Version [15] According to the appellant, the November 2 meeting was a very quick one, from which the takeaways were that he had representation and there would be some court appearances that would not require his attendance – a matter of concern for him since he lived in Toronto. The appellant signed a “Designation of counsel of record” form dated November 2, 2017, appointing trial counsel to represent him. [16] According to the appellant, trial counsel never said anything to him about the mode of trial on November 2, 2017, or any time afterwards. As he states in his affidavit: Neither [trial counsel] nor anyone acting on his behalf ever communicated with me about the mode of trial … ever told me I had an absolute right to a jury trial … ever explained the reasons why I should choose one mode of trial over another … or ever told me the client, not the lawyer, chooses the mode of trial. I never authorized or instructed [trial counsel] … to elect mode of trial on my behalf, and I was never asked to give such authorization or instructions. [17] On cross-examination, when it was suggested to him that there was a discussion about mode of trial on November 2, 2017 and that he gave instructions to elect judge-alone, he answered that “did not happen”. When he was pressed on the point and was asked: “[s]o you don’t think it’s possible that this conversation happened the way [trial counsel] says, and you just forgot about that detail” he responded: “I know the conversation did not happen.” [18] Notwithstanding the lack of discussion with trial counsel, the appellant testified that he always assumed he would have a jury trial. He explained that this was just an assumption based on the seriousness of the charge and what he knew from television, movies, and similar sources. He had no relevant legal experience. He never shared this assumption with trial counsel. ii. Trial Counsel’s Version [19] According to trial counsel’s affidavit, the mode of trial was discussed by him with the appellant only once, early in the retainer. On cross-examination, trial counsel agreed the discussion was at the meeting on November 2, 2017, at the courthouse. [20] Trial counsel deposed in his affidavit that he told the appellant at this meeting that he had the choice of a trial in provincial court before a judge or in Superior Court before a judge or a judge and jury; that with a Superior Court trial the appellant could have a preliminary inquiry; and that his advice was that the appellant elect to have a judge-alone trial in Superior Court with a preliminary inquiry. According to trial counsel, the appellant responded that he thought trial counsel knew best on this issue and would defer to trial counsel’s judgment. [21] Trial counsel did not obtain written instructions. He stated in his affidavit that it was not his practice to do so. He also stated that he could not locate any notes of the meeting though he believed he would have made some. (His docket entry for November 2, 2017 consists of one word: “Adjournment”). [22] On cross-examination, trial counsel clarified that not only did he not currently have notes of the discussion or instructions about mode of trial, he “didn’t make any notes”. He acknowledged that he conducted this discussion before he had disclosure from the Crown, and before he had any detailed discussion with the appellant about the facts of the case. He also acknowledged that he did not provide the appellant with a detailed explanation for choosing one mode of trial over the other. He just said to the appellant: "This is what I would do." No Further Discussions About the Mode of Trial with the Appellant [23] Before the appellant and trial counsel swore their affidavits, appellant’s current counsel wrote to trial counsel in February 2023 with questions about the mode of trial issue. A letter in response, dated March 20, 2023, was sent on behalf of trial counsel by another lawyer. It stated that in addition to the initial discussion about the mode of trial, the topic would have been discussed in subsequent telephone calls. However, in his affidavit trial counsel deposed that he did not re-visit the issue of mode of trial with the appellant after the initial in-person discussion. On cross-examination, trial counsel also confirmed he had no recollection of any telephone calls in which he discussed the mode of trial with the appellant, notwithstanding what the letter sent on his behalf said. Trial counsel stated that he did not agree with that portion of the letter, and also stated that he had not read the letter before it was sent. Appearance at Intake Court on February 26, 2018 [24] On February 26, 2018, the appellant’s case came up in provincial intake court. Trial counsel appeared. The appellant was not present. The attendance is important because on that date, in response to a question from the court as to whether he wished to make the election or whether he needed instructions, trial counsel said he needed instructions. He conceded on cross-examination that on its face this “belies the assertion [he] had discussed mode of proceeding with [the appellant] and received instructions from him in November of 2017.” [25] The transcript of the February 26, 2018 attendance reads as follows: [CROWN COUNSEL]: Going back to the Zock matter. Just one moment. Going back to the Zock matter, Your Honour, the Crown will be proceeding by indictment. THE COURT: Oh, for preliminary hearing, then. [TRIAL COUNSEL]: Yes. THE COURT: To set a preliminary hearing date. CLERK REGISTRAR: There's been no accused election. THE COURT: I'm sorry? CLERK REGISTRAR: There's been no accused election. THE COURT: Did you want to deal with the election now, or do you need instructions on that? [TRIAL COUNSEL]: I need instructions. THE COURT: Okay. CLERK REGISTRAR: Set date for pre-trial and instructions and accused election. [Emphasis added.] [26] In his affidavit, trial counsel explained what had occurred by saying he believed he misspoke as a result of the number of matters he was dealing with that morning. [27] There is no evidence of any discussions with the appellant about making the election between February 26, 2018 and March 8, 2018 when an election was communicated to the court. The Election [28] At the next court appearance, on March 8, 2018, a lawyer who rented office space from trial counsel appeared as agent. The appellant was not present. The agent told the court that the appellant’s election was a preliminary inquiry and judge-alone trial. [29] On cross-examination, trial counsel had no recollection of instructing the agent to so elect; he believed he would have but could not reject the possibility that he and the agent never discussed it, as he did not remember. The agent did not give evidence. [30] Trial counsel did not report to the appellant that the election had been made. The Preliminary Inquiry [31] Trial counsel and the appellant were in court for the start of his preliminary inquiry on August 2, 2018. At the outset there was a conversation among the court, Crown counsel, and trial counsel about a number of matters, after which the court clerk made several statements including that arraignment was waived, the Crown was proceeding by way of indictment, the accused had elected superior court judge-alone and a preliminary inquiry was requested. The relevant part of the transcript reads: [CROWN COUNSEL]: And I can indicate that other witness, Your Honour, will likely take 45 minutes at most. THE COURT: Yeah. [TRIAL COUNSEL]: With Your Honour, probably 20 minutes. With Your Honour, probably more like 20 minutes, but... THE COURT: Yeah. Yeah. It's a discovery type... [TRIAL COUNSEL]: Yeah. THE COURT: Yeah. [CROWN COUNSEL]: Exactly. Okay. COURT CLERK: And there is a publication ban pursuant to section 486.4. Arraignment was waived. The Crown has elected to proceed by indictment, and the accused has elected Superior Court, judge alone... [TRIAL COUNSEL]: Yes. COURT CLERK: ... and a preliminary hearing requested. [TRIAL COUNSEL]: Yes, that's correct. [Emphasis added.] [32] The appellant was asked about this on cross-examination. He said that nothing that the court clerk had said stood out to him, and he could not recall the statement about an election having been made (although he acknowledged based on the transcript, that it had been). He was focused on what trial counsel was saying to him about the preliminary hearing and the evidence that would be led. He elaborated: Q. So were you paying attention for this part of the preliminary inquiry -- or I guess you don't remember? A. I can't recall. I mean, there -- I know there was announcements made. But, yeah, I can't recall that being said. There was, you know, words coming from, I think, the judge, the clerk, you know, my file, my file number. Yeah. You know, it's an active courthouse -- or a courtroom. Q. And you were just trying to focus on the parts that seemed important to you? A. Well, yeah, with [trial counsel]. And -- yeah. I mean, he sort of explained that they would be presenting evidence or that the complainant would be coming up, and so he gave me expectations while we were up there of what was happening. Q. When you say "while we were up there," what do you mean? A. Like, in the courtroom, sorry. Q. He told you what a preliminary inquiry was? A. Yes. Q. Okay. A. And then I think at that time he said -- at that time he was, like, yeah, it won't even matter -- they won't even do these anymore for your charges. Q. Okay. A. I think it was at that time when he sort of explained, yeah, what was going to happen. Q. Okay. A. Like, the process of -- like, he was doing the explaining to me as opposed to me relying on or trying to follow the clerk, I guess. [33] Trial counsel deposed that if the appellant had expressed any concern about the judge-alone mode of trial after the preliminary inquiry he would have re-elected on the appellant’s behalf. The Trial [34] The trial was scheduled to begin on February 14, 2022. On January 10, 2022, the appellant emailed trial counsel indicating that he was working in British Columbia, had seen that Ontario had been put on lockdown and asked: “I am wondering if my trial date is still a go for February 14th”. Trial counsel responded by email on January 11, 2022: “Trials are still proceeding”. [35] The appellant deposed that what triggered his question were articles he read about jury selection in Ontario having been put on hold until February 7, 2022, and about another sexual assault case (which he thought would be before a jury) having been postponed due to the pandemic. Based on his assumption that he would be having a jury trial, he thought these developments might affect the date for his trial. He acknowledged on cross-examination that his email to trial counsel did not mention jury trials nor his assumption that he would be having one. [36] The appellant met with trial counsel on the weekend before his trial commenced. Neither he, nor trial counsel, said anything about a jury, or about the judge. He testified that nothing in the trial preparation meetings led him to think he would not be having a jury trial. [37] The trial started on February 14, 2022.The appellant realized there was no jury. He did not raise this with trial counsel. He observed that trial counsel did not act like anything was amiss. The appellant concluded that his assumption that he was entitled to a jury trial and would be having one must have been wrong. He stated in his affidavit: Having shown up for trial and seen there was no jury, I figured my assumptions were wrong. [Trial counsel] was my lawyer and he, not I, was the legal expert. Because [trial counsel] neither said nor did anything about there being no jury, I figured I was not entitled to a jury. I did not say anything to [trial counsel] because I inferred from his actions I was not entitled to a jury trial and I had no reason to question him about this. Developments Post-Conviction [38] After he was convicted the appellant changed counsel and ultimately took the position that he had received ineffective assistance from his trial counsel on the issue of the mode of trial. He sought a mistrial from the trial judge, which the Crown opposed on the basis that it was more properly raised as a ground of appeal. The trial judge declined to hear the mistrial application. The Appellant’s Intentions About a Jury Trial [39] The appellant deposed in his affidavit that, had he known when his trial started that he had an absolute right to a jury trial and that he, not trial counsel, had the right to elect the mode of trial, he would have said he wanted to be tried by a jury. He also stated that “[w]ere my conviction appeal allowed and an order made for a new trial, I would choose to be tried by a jury”. On cross-examination, these statements were not specifically challenged. B. Analysis The Applicable Principles [40] A person seeking a new trial on the basis that they received ineffective assistance of counsel must establish three elements: (i) the facts underlying the assertion of ineffective assistance (the factual component), (ii) that on the facts established, a miscarriage of justice resulted because the ineffective assistance rendered the trial unfair or the verdict unreliable (the prejudice component) and, if (i) and (ii) are established (iii) that counsel’s conduct fell below the required standard (the performance component): Joanisse, at p. 62; R. v. Blake, 2023 ONCA 220, 166 O.R. (3d) 641, at para. 6; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 25-29. [41] On each element of an ineffective assistance of counsel claim, the accused person bears the onus of proof and persuasion: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. 582, at para. 48. [42] Certain fundamental decisions relating to the defence of a criminal matter are the client’s to make. A number of related consequences flow from this that are germane to a claim of ineffective assistance of counsel. First, because “the right to make these decisions belongs to the client, counsel cannot make them alone”: R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at para. 49. Second, in respect of such decisions, counsel’s responsibility is to provide competent advice and act on proper instructions: R. v. K.K.M., 2020 ONCA 736, at para. 91; Trought, at para. 50. In other words, on such matters, counsel must provide advice, obtain instructions that reflect the client’s decision, and follow those instructions. Counsel would not act properly on such matters if they discerned the client’s wishes and then acted against them, or if they failed to discern the client’s wishes and acted without instructions at all: R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 247, at para. 78. [43] The right to elect the mode of trial by waiving trial by jury, where the option is available, has long been recognized as a decision that must be made by the client: see the discussion in Trought, at paras. 46-48. The Supreme Court of Canada has confirmed that the ability to elect the mode of trial is (i) an important right, and (ii) one that should be exercised by the accused person: R. v. White, 2022 SCC 7, [2022] 1 S.C.R. 64, at para. 5. Counsel may, of course, communicate the accused person’s election, after having been appropriately instructed to do so. But the election of the mode of trial is not something that counsel may exercise without any instructions to do so, because it “is one of those fundamental rights that counsel cannot take from a client and on which the client is entitled to be adequately advised by counsel”: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 18. [44] It follows that in this case, if trial counsel failed to discuss and obtain instructions on the fundamental decision of the election of the mode of trial, the appellant will have established on a factual basis that he received ineffective assistance from trial counsel: see White, at paras. 4-6. The Crown concedes that “if the appellant was never told that he could have a jury trial, this would fall below the broad spectrum of reasonable professional judgment”. [45] But as White makes clear, it is not enough that the appellant, through ineffective assistance of counsel, was deprived of the important right to elect the mode of trial. A new trial on the basis of ineffective assistance of counsel will only be ordered if the appellant also demonstrates that the loss of the right to elect gave rise to a miscarriage of justice: White, at para. 6. The appellant must establish a reasonable possibility that he would have acted differently if he had received effective assistance from trial counsel; in other words, he must establish a reasonable possibility that he would have elected trial by jury: White, at paras. 6-9. The Issues [46] Accordingly, I would state the issues that need be decided as follows: (i) Did trial counsel elect trial by judge-alone without informed instructions from the appellant? This question is essentially about whether such instructions were sought and obtained on November 2, 2017. (ii) If the election was made without informed instructions, did a miscarriage of justice result? This question reduces itself to whether there is a reasonable possibility that the appellant would have elected trial by judge and jury had he been informed of the choice and allowed to make it. i. Did Trial Counsel Elect the Mode of Trial Without Informed Instructions? [47] There is no dispute on the evidence that the election was made on March 8, 2018, by an agent for trial counsel in the absence of the appellant. For trial counsel’s conduct to have been proper, the election would have to have been made to implement the appellant’s instructions. Trial counsel points to one conversation alone in which he says he sought and obtained those instructions – the meeting of November 2, 2017. He confirms that mode of trial was not discussed at any other time. [48] Trial counsel’s evidence suffers from significant problems. Among the most prominent are the following. [49] First, there are no written instructions signed by the appellant, nor is there anything in writing from trial counsel to the appellant confirming the appellant had given instructions on this fundamental decision. There were no exigent circumstances that would explain why, if advice was conveyed and instructions were given on the fundamental decision of the mode of trial on November 2, 2017, nothing was documented at the time, nor confirmed in writing immediately afterwards or indeed at anytime during the approximately four months from the November meeting until the election was communicated to the court in March 2018. [50] Trial counsel’s explanation, that his practice was not to obtain instructions in writing, is unsatisfactory. [51] Decisions of this court have stressed the importance of written instructions on fundamental decisions. In R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 140-42, Doherty J.A. referred to the strong presumption, applied in cases where ineffective assistance is alleged, that counsel is competent. A fact that was consistent with the presumption of competence in that case was that counsel had obtained a written direction on the fundamental decision there in issue (the accused’s decision not to testify). On the other hand, in R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, at para. 30, another case involving a claim of ineffective assistance involving regarding a decision not to testify, Trotter J.A. commented on how the absence of written instructions, though not necessarily an indicium of ineffectiveness, “is in tension with ‘the strong presumption of competence in favour of counsel’” referred to in Archer. See also R. v. R.W., 2023 ONCA 250, 167 O.R. (3d) 1, at para. 24. [52] Second, counsel has no notes of the discussion he says occurred on November 2, 2017 with the appellant. Trial counsel’s statement in his affidavit, that he believed he had taken notes but could no longer find them, recognized the reality that notes would be expected of this type of important discussion and any resulting instructions. Trial counsel’s later confirmation, on cross-examination, that he did not actually take any notes undermines confidence in his assertion that the discussion took place. [53] Third, trial counsel made an express representation to the court on February 26, 2018, in response to a direct question as to whether he wanted to deal with the election or whether he needed instructions, that “I need instructions”. Counsel has a duty of candour to the court – this statement to the court is, as he acknowledged on cross-examination, directly at odds with the position that he sought and had received instructions from the appellant on that topic in November of 2017. Given that this attendance was only three months after the November meeting, I prefer the recollection he conveyed to the court in February 2018, that he still needed instructions, to his much later assertion in his evidence in this case that he in fact had obtained them in November 2017. [54] Fourth, the circumstances under which the election was made in March 2018 do not provide any confirmation that trial counsel had received those instructions in November 2017. The election was made by an agent for trial counsel, but trial counsel has no recollection of instructing him beyond a belief that he must have, and there is no evidence from the agent himself as to what was explained to him concerning when and how instructions had been conveyed by the appellant to trial counsel. Nor was there any report by trial counsel to the appellant following the March hearing that he had implemented instructions and made the election. In other words, there is no consistent through-line that connects trial counsel’s supposed receipt of undocumented and unconfirmed instructions in November 2017 to the making of the election itself in March 2018. [55] The appellant swore that no instructions were given and the conversation about mode of trial that trial counsel described did not happen. The Crown emphasizes two matters which it suggests severely undermine the appellant’s version. [56] The first is the fact that the appellant did not react or raise any questions when the court clerk, at the preliminary inquiry, included a reference to a judge-alone trial having been elected when describing the procedural history. The second is that, when the appellant attended for his trial, it was clear there was no jury, but the appellant did not raise that with trial counsel at the time. The Crown asserts that this behaviour is consistent with trial counsel’s evidence that the appellant had instructed that a judge-alone trial be chosen. [57] I do not attach the weight to either of these considerations that Crown counsel asks us to. With respect to the first, in the context of the beginning of the preliminary inquiry, it would be unrealistic to expect the appellant to have focused on this aspect of the clerk’s statements. With respect to the second, it undermines the appellant’s evidence only if one accepts that the appellant was told he had a right to a jury in the first place. Otherwise, his failure to complain does not displace his explanation that he had simply assumed there would be a jury but concluded, because trial counsel did not act as though anything was amiss, that he had assumed incorrectly. [58] The appellant bears the burden of proof as to what occurred. I prefer the appellant’s evidence on the issue of what occurred on November 2, 2017 to that of trial counsel. I am not satisfied that trial counsel obtained informed instructions to make an election of the mode of trial that gave up the right to a jury trial. Therefore, I am satisfied that the appellant was deprived of his right to choose to be tried by a jury. [59] The appellant has thus satisfied the factual and performance components of the ineffective assistance of counsel ground of appeal. [60] I turn to the question of whether a miscarriage of justice occurred. ii. Did a Miscarriage of Justice Occur? [61] In White, the Supreme Court held that simply showing that counsel elected the mode of trial without instructions was not sufficient to warrant a new trial – the loss of the right to elect was not, on its own, the equivalent of a miscarriage of justice that made the trial process unfair. A miscarriage of justice required evidence of something more, which was lacking in White. In particular, the court pointed out that Mr. White did not say in his evidence that he would have made a different election if he had been given the choice, nor did he say that if given a new trial he would elect a mode of trial different than the one that resulted in his conviction. Analogizing to R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, a case where an accused challenged a guilty plea on the basis that he was not aware of a relevant collateral consequence, the court stated that a showing of subjective prejudice – a reasonable possibility that the accused would have behaved differently if properly advised – is necessary to establish a miscarriage of justice. [62] The evidence that was lacking in White is present in this case. The appellant has sworn that he would have elected trial by jury if told of his right to do so, and if granted a new trial, that he would elect trial by jury. Although the appellant was not expressly challenged on cross-examination on these statements, the Crown suggests they not be taken at face value and that the appellant is now saying what he needs to, given the result of the trial. [63] I do not accept the Crown’s argument. The appellant’s evidence is sufficient to raise a reasonable possibility that he would have elected differently if properly advised. The element of subjective prejudice beyond the simple loss of the right to elect is present here. [64] A miscarriage of justice may occur where counsel’s substandard performance raises sufficient concerns about the reliability of the verdict or about the fairness of the trial. In this case, the concern is not about the reliability of the verdict but about the loss of the appearance of trial fairness. As Major J. stated in G.D.B., describing certain types of miscarriages of justice, “[i]n some instances, counsel’s performance may have resulted in procedural unfairness”: at para. 28; see also White, at para. 7. That is what occurred here. [65] The right of a criminally accused person to effective assistance of counsel is a principle of fundamental justice: G.D.B., at para. 24. Where an accused had a right to trial by jury, ineffective assistance of counsel resulted in the accused being deprived of the right to choose trial by jury, and there is a reasonable possibility trial by jury would have been chosen if the accused had been given the opportunity to do so, a miscarriage of justice has occurred. Public confidence in the administration of justice would be shaken if, in those circumstances, a verdict reached through a different mode of trial that the accused did not select could stand.[3] Conclusion on the Ineffective Assistance Ground of Appeal [66] I would allow the appeal on the ineffective assistance of counsel ground. III. The Unreasonable Verdict Ground of Appeal [67] The appellant argues that he is entitled to an acquittal on the basis that the verdict was unreasonable in the sense that no reasonable and properly instructed trier of fact could have concluded, as the trial judge did, that the evidence established that the complainant was incapable of consenting to the sexual activity in question due to her intoxication. [68] We did not call on the Crown to respond to this argument and I describe only briefly why I reject it. [69] In considering this ground of appeal, it is important to underscore that the question is not whether the appellate court may have entertained a reasonable doubt but whether, on the totality of the evidence, proper judicial fact finding precludes a conviction: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28. [70] Capacity to consent to sexual activity requires an operating mind capable of understanding the physical act in question, its sexual nature, the specific identity of the sexual partner and that they have a choice whether to engage in the sexual activity: R. v. G.F., 2021 SCC 20, [2021] 1 SCR 801, at paras. 57-8. Whether intoxication has resulted in a lack of ability to consent must be determined on all the evidence. Relevant evidence in this respect may include, among other things, the amount of alcohol consumed, signs of impairment, and expert evidence: R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at para. 94. [71] The appellant’s evidence that the sexual encounter with the complainant was completely consensual was rejected by the trial judge. She accepted the complainant’s evidence that she had gone to the bar with her friend A.Z. but had no recollection of what occurred from some point before she left the bar until she woke up in his hotel room to find the appellant having intercourse with her. [72] After acknowledging that, while relevant, “an inability to remember does not necessarily mean that the person was acting without capacity or intent at the time of the events in question”, the trial judge reviewed other evidence relating to the question of whether an absence of capacity due to intoxication was shown. [73] The trial judge accepted the evidence of A.Z., who went with the complainant to the bar, accompanied her out of the bar and was with her for part of the cab ride after they left the bar with the appellant and his friend. A.Z. knew the complainant well and had been out drinking with her before. A.Z. testified that by the time they left the bar and were in the cab the complainant appeared extremely intoxicated, was stumbling and slurring her words, was “completely out of it” and was “kind of loopy”. [74] The trial judge also referred to photos of the cab ride the complainant took from the bar to the appellant’s hotel, which showed the complainant vomiting, appearing dazed, and falling asleep. The trial judge also noted that the photos showed the complainant not knowing what to do with money the appellant handed her, appearing too intoxicated to understand that she should use the money to pay the cab driver. The trial judge also referred to expert evidence which estimated the complainant’s blood alcohol level shortly before the sexual encounter with the appellant at twice the legal limit – a level associated with drowsiness and unconsciousness. [75] Such evidence could reasonably support a finding of incapacity. Although the appellant points to other evidence, in our view, none of it reaches the level that, given the totality of the evidence, precludes a finding of incapacity. The evidence of A.Z. that after they left the bar, A.Z tried to discourage the complainant from going with the appellant to his hotel room, but complainant said it was “fine”, did not entail a finding that the complainant understood she had a choice about having sex with the appellant (something not raised in the discussion with A.Z.). Nor does the complainant’s evidence that, after she woke up, she was able to develop a ruse to get the appellant to take a shower, allowing her to leave, or that she was later able to give a partial description of the hotel room and of the appellant to the police, make the finding of incapacity at the time of the sexual contact unreasonable. Although the appellant takes issue with the trial judge’s interpretation of the photos from the cab ride, the interpretation she reached was open to her. [76] The test for an unreasonable verdict is not met. I would reject this ground of appeal. IV. Disposition [77] In his supplementary notice of appeal raising the ineffective assistance of counsel ground, the appellant requested a new trial before a judge and jury. He made the same request in his factum addressing this ground of appeal, if it were to be the sole ground on which he succeeded. Section 686(5)(a) of the Code provides that “if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly”. [78] I would admit the fresh evidence, allow the appeal on the ineffective assistance of counsel ground, set aside the conviction and order a new trial before a judge and jury. Released: July 7, 2025 “G.T.T.” “B. Zarnett J.A.” “I agree. Gary Trotter J.A.” “I agree. J. George J.A.” [1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46. [2] Those grounds are that the verdict was unreasonable in the sense set out in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 96-97, because the trial judge’s conclusion that the complainant was incapable of consenting was incompatible with other evidence that she did not reject, and that trial Crown’s unintentionally misleading cross-examination of the appellant caused the trial judge to misapprehend evidence thus compromising the trial judge’s ability to assess the appellant’s credibility. [3] The Crown does not argue that the verdict could be upheld by resort to the curative proviso pursuant to s. 686(1)(b)(iii) of the Code.