Ontario Court of Appeal orders new trial based on defence counsel performance

Law360 Canada (August 19, 2024, 1:39 PM EDT) --

John L. Hill

Seldom does the Ontario Court of Appeal, the province’s highest court, allow an appeal of conviction based on defence counsel’s performance that undermined the fairness of a trial. Yet in R. v. Nnane, 2024 ONCA 609, the court ordered a new trial for George Nnane because of the “ineffective” performance of his defence counsel at trial and concluded that the lawyer’s defence “fell below the standard of reasonable professional judgment.”

In the fall of 2019, a jury convicted Nnane of tax fraud and sentenced him to three years imprisonment.

Nnane owned a tax preparation business called Golden Capital Management Inc. that filed income tax returns for dozens of clients. In returns filed for tax years 2009–2011, many claims for nonexistent charitable donations and spurious business and rental expenses were listed. The result was a $1.9 million fraud on the government. Nnane testified in his defence at trial and placed the blame for the inaccuracies on his secretary, Christine Forbes, who assumed control of the business when Nnane took leave due to personal and mental health challenges. The fraud charges involved misrepresenting taxes and deductions wrongly claimed for HST/GST overpayments.

The judgment does not name the lawyer accused of ineffective representation of a client, but an Aug. 15, 2024, report in the Toronto Star names Ari Goldkind as trial counsel for Nnane. The judgment does not point out that during his 17-year legal career, Goldkind, as he told the Star, has represented hundreds of clients with “positive outcomes in many, hotly contested trials.” He is widely known as a TV commentator on legal matters. Nor does the judgment refer to a statement Goldkind received from the trial judge, Andras Schreck, who told Goldkind, “Ultimately, I don’t see how you're responsible for the outcome other than if you do your best to represent your client to the best of your ability and from where I’m sitting it certainly appears that you have been doing so.”

In its analysis of the representation afforded to Nnane, the Court of Appeal listed three components that must be proven on the balance of probabilities to overcome a presumption of professional competence: (a) the “factual component” that shows a factual basis for the claim; (b) the “incompetence component” demonstrating conduct below professional standards and (c) the conduct led to an “unreliable verdict or unfair trial” conclusion (R. v. Girn, 2019 ONCA 202; R. v. Fiorilli, 2021 ONCA 461; R. v. Archer, (2005), 202 C.C.C. (3d) 60).

The Court of Appeal found the first two components applicable. However, it varied from the traditional silence on commenting about performance to providing a lengthy critique of the trial counsel’s conduct. The appeal court found the “most salient facts” surrounded trial counsel’s performance. Nnane argued that his lawyer had not appropriately prepared, nor had he cross-examined effectively. The Court of Appeal stopped short of finding that the trial lawyer did not adequately prepare but cited several instances from the trial transcript where cross-examination could have been more fulsome. Its further criticism was that Nnane’s lawyer did not give the impression he was convinced of his client’s innocence. The Court of Appeal deduced his doubt from how questions were framed and the lawyer’s closing statement to the jury. In reviewing the lawyer’s presentation at trial and his address to the jury, the Court of Appeal had no hesitation in concluding that “quite simply, he did not stand with his client.”

Was there prejudice to the client? The Court of Appeal found the case against Nnane was strong, and the likelihood of conviction, even if the case was presented more forcefully, was high. Lawyers are bound by an ethical standard forbidding them from lying to the court. Yet there is an obligation to be supportive of clients in their defence (R. v. Joanisse, [1995] O.J. No. 2883))

In this case, the proposition put forward by the appeal court is: “If trial counsel fails to meaningfully support their client’s defence after they have undertaken their representation, they deprive that person of partisan advocacy and therefore of a fair trial.”

From personal experience in my criminal law practice, I have often remarked that the most dangerous criminals are not murderers but fraudsters. It is tough to mount a strenuous defence when lawyers cannot convince themselves of their client’s innocence. How does one reconcile the ethics of adducing what may be false evidence with forcefully advocating in the partisan manner expected in our adversarial system? Maybe Goldkind opted for ethical behaviour over partisanship.

Was the Court of Appeal too harsh on Ari Goldkind? Perhaps the most legitimate criticism that can be levelled against him is that, if unconvinced of his client’s innocence, he failed to apply to be removed from the record early.

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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