Why Alberta Court of Appeal dismissed ineffective counselling claim in sex assault case

Law360 Canada (December 4, 2024, 12:29 PM EST) --

John L. Hill

Darius Clarke appealed his conviction for sexual interference and sexual assault, claiming that he had ineffective assistance of counsel. He also blamed the trial judge for misapprehending the evidence of where DNA was found on the complainant. He was also critical of the trial judge’s acceptance of the complainant’s testimony and finding it credible. The Alberta Court of Appeal dismissed Clarke’s appeal in written reasons handed down on Oct. 31, 2004 (R. v. Clarke, 2024 ABCA 346).

Clarke admitted that he had attempted to have sexual intercourse with the 15-year-old complainant when she visited his home on Dec. 9, 2016, but was unable to achieve an erection. He also claimed the complainant told him she was just short of 17 years of age and had consented to his activities with her. The police interrogation of Clarke on Oct. 29, 2018, suggested that Clarke’s DNA had been found inside the complainant when it had been found on the complainant’s waistband. Clarke’s evidence at trial was inconsistent with his statements at an earlier interview with police. He explained that this was due to his being intoxicated or hungover when he talked with the police.

The trial judge accepted the complainant’s version of events and described Clarke’s explanation involving intoxication as “not worthy of belief.” Clarke was convicted.

The claim for ineffective assistance of counsel was based on Clarke’s view that his trial lawyer did not dispute the admissibility of the Oct. 29 interview based on voluntariness or a breach of section 10(b) of the Charter.

Everyone accused of a crime has a right to effective assistance of counsel (R. v. GDB, 2000 SCC 22). To show ineffectiveness resulting in a miscarriage of justice, it must be demonstrated that the advice or advocacy fell beyond reasonable professional judgment. The onus is on the appellant to provide the facts that the representation resulted in procedural unfairness or compromised reliability of the trial results (R. v. Sauverwald, 2020 ABCA 388). The onus is upon the accused to show that a different trial outcome was a reasonable probability rather than a mere possibility had counsel proceeded differently (R. v. LaFrance, 2022 ABCA 182).

The perspective of trial counsel is essential to establish if the lawyer erred. Bringing an allegation of ineffectiveness waives solicitor-client privilege, and the trial counsel is a compellable witness (R. v. Hobbs, 2009 NSCA 90; R. v. Hanaysha, [2024] A.J. No. 258; R. v. Sagos, 2022 ONCA 603). This is because decisions that may seem strange to a client may have strategic or legal justification. Clarke did not provide an affidavit from his trial counsel. A court cannot simply take a client’s word that the solicitor acted improperly. Without a factual basis, this ground of appeal failed.

The voluntariness of statements made in the Oct. 29 interview does not offend Clarke’s s. 10(b) rights. The investigating officer made no threats or promises or engaged in oppressive conduct or trickery. There was no indication Clarke lacked an operating mind (R. v. Tessier, 2022 SCC 35; R. v. Spencer, 2007 SCC 11; R. v. Oickle, [2000] 2 S.C.R. 3). Clarke understood his right to remain silent.

Although the police made the inaccurate statement about DNA being inside the complainant, the appeal court held this was conduct that would not shock the community. Elsewhere in the interview, the officer was vague about the location of the evidence. Clarke had been allowed to consult with a lawyer. The statements were voluntary and complied with Charter s. 10(b).

Trial judges may misapprehend evidence so long as the misapprehension does not affect a central element in the judge’s reasoning that led to the conviction (R. v. Sinclair, 2011 SCC 40; R. v. Smith, 2021 SCC 16; R. v. Lohrer, 2004 SCC 80; R. v. Grandjambe, 2023 ABCA 360). In this case, the trial judge misstated that the officer did not say the DNA was found inside the complainant, but this did not impact the judge’s reasoning process.

Appeal courts give deference to a trial judge’s finding of credibility and will intervene only if there is a palpable and overriding error of law (R. v. Kruk, 2024 SCC 7). Here, the trial judge explained why the DNA evidence was irrelevant to his findings of credibility.

Clarke also accused the trial judge of providing inadequate reasons. In his judgment, he had not explained how the Oct. 29 interview may have been misleading due to Clarke’s being hungover. However, the reasons are clear that the judge had accepted Clarke’s evidence that he had not been drinking the night before giving the interview. Demonstrating sufficiency of reasons is a “very low bar” (R. v. GF, 2021 SCC 20). There is sufficient indication as to why the judge rejected Clarke’s claim of intoxication.

Clarke’s blaming everyone except himself failed. His appeal was dismissed.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an 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) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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