Court found no proof of appellant's claim that lawyer's pervasive incompetence made trial unfair
The Ontario Court of Appeal has upheld a conviction of criminal harassment and extortion upon finding that the accused harassed and threatened the lawyer who had acted for him in connection with criminal charges in Bermuda.
In R. v. Sagos, 2022 ONCA 603, the appellant was arrested in Bermuda on drug charges in 2009 and held in custody. His family hired an Ottawa-based lawyer who, alongside his counsel in Bermuda, arranged for the appellant to plead guilty to a “financial offence.” The appellant was soon released and returned to Toronto.
Later, the appellant brought suits against his former lawyer, in court and before the Law Society of Ontario. He also sued the Ottawa Police Service and the Royal Canadian Mounted Police, alleging the following:
- The Bermuda charges continued to negatively affect his reputation
- The Bermuda authorities, the RCMP, and the Ottawa police were conspiring to falsely accuse him of crimes
- His former lawyer was improperly withholding disclosure that the Bermuda authorities provided relating to the Bermuda charges
- The lawyer owed him $125,000.
The court denied the appellant’s claim against his former lawyer as frivolous and vexatious, while the law society dismissed his complaint.
The appellant started sending abusive emails to his former lawyer, including a 2016 email that he considered a threat to sell the debt to criminals who would use whatever means necessary to collect it. Concerned for his and his family’s safety, the lawyer reported the appellant to the police.
The appellant was arrested and faced charges of criminal harassment and extortion. He did not testify at trial, so the record consisted of the former lawyer’s evidence, emails from the appellant to the lawyer, and the appellant’s police statements following his arrest.
In 2018, a trial judge convicted the appellant of criminal harassment and extortion. The judge found that the former lawyer was a credible witness and that the appellant’s exculpatory explanations in his police statements left no reasonable doubt regarding the meaning of the emails and his intention.
On appeal, the appellant argued that trial counsel provided ineffective assistance, which led to a miscarriage of justice.
No evidence showing ineffective assistance from counsel
The Court of Appeal found that the appellant failed to make out his specific allegations of ineffective assistance of counsel.
First, the appellant claimed that trial counsel advanced various defences that lacked any chance of success. Specifically, trial counsel challenged the lawfulness of the arrest, the credibility of the Ottawa police officers, and alleged improper collusion with the Bermuda police. The appellate court held that trial counsel acted competently and pursued a reasonable defence.
Second, the appellant asserted that trial counsel’s cross-examination of the main Crown witness was incompetent. The appellate court disagreed and found no evidence suggesting that further cross-examination would have achieved anything.
Third, the appellant submitted that trial counsel did not address client-solicitor privilege in determining whether there were any objections to the former lawyer’s evidence. The appellate court saw no evidence that trial counsel failed to consider client-solicitor privilege or failed to discuss this issue with the appellant.
Fourth, the appellant argued that trial counsel was incompetent because he did not object to the Crown’s late disclosure, did not ask for an adjournment, and did not file a motion under s. 11(b) of the Canadian Charter of Rights and Freedoms.
The appellate court said that this argument was speculative. The appellant failed to state the facts upon which this allegation depended and failed to establish possible prejudice due to trial counsel’s decision not to seek an adjournment, the court concluded.
