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Trial Tactics: Is There a Rule Against Second Guessing?

  • April 15, 2024
  • Clayton Rice, K.C.

What is the result on appeal when trial counsel did not object to the judge’s instructions to the jury? An opinion released today by the British Columbia Court of Appeal in a tragic manslaughter case highlights the broad rule that a failure to object by trial counsel is a non-controlling factor to be considered on appeal and the narrow rule that limits appellate intervention when the silence of counsel was based on tactical considerations. Appellate courts hesitate to second guess the tactical decisions of trial counsel except to prevent a miscarriage of justice.

1. Introduction

On December 20, 2017, Thomas Toth, 57, and Orlando Ocampo, 86, bumped into each other as they were leaving the busy Costco store in downtown Vancouver, British Columbia. It was a chance encounter between Christmas shoppers that would change their lives forever. After a brief verbal exchange, Mr. Toth and his daughter went to wait for a cab and Mr. Ocampo went to speak with a security guard, Renan Mataya. Mr. Ocampo and Mr. Mataya returned to speak with Mr. Toth and, after another brief verbal exchange, Mr. Ocampo pepper sprayed him in the face. Mr. Toth reacted by “swearing, kicking his feet and pushing” Mr. Ocampo who turned to go back to the store. Mr. Toth then pushed him again from behind causing him to fall. He struck his head and lost consciousness. On January 11, 2018, Mr. Ocampo was taken off life support. On December 1, 2020, a jury convicted Mr. Toth of manslaughter and on June 29, 2021, he was sentenced to 18 months imprisonment. (here and here) Earlier today, his appeal from conviction was dismissed by a unanimous panel of the British Columbia Court of Appeal with reasons delivered by Justice Barbara Fisher. (here)

2. The Appeal

Mr. Toth testified that he suffered from claustrophobia which affected him in crowds. He said it was affecting him that morning in the Costco store. Mr. Mataya, the security guard, testified that in his opinion Mr. Toth was “trying to protect himself” when he pushed Mr. Ocampo. The following three issues thus emerged on appeal: (a) that the trial judge failed to instruct the jury on the relevance of Mr. Toth’s claustrophobia to the assessment of whether his conduct was reasonable in the circumstances; (b) that the trial judge failed to give a limiting instruction when Mr. Mataya gave lay opinion evidence whether Mr. Toth acted in self-defence; and, (c) that the trial judge misdirected the jury on the element of consent as it applied to the wrongful act of assault. The Crown’s position was that the trial judge made no error on the first two issues but conceded the instruction on consent was flawed. However, the Crown further asserted that no prejudice arose and the curative proviso should apply. I will limit my comments in this post to the first two issues in light of Justice Fisher’s conclusion that, “[c]onsent was not a live issue in the trial.”

(a) Failure to Instruct on the Relevance of Claustrophobia

Neither the prosecutor nor Mr. Toth’s counsel at trial referred to his evidence of claustrophobia in their closing summations to the jury and the trial judge did not expressly refer to it in her instructions to the jury when reviewing the elements of self-defence under s. 34 of the Criminal Code. The argument was therefore advanced that the judge’s failure to refer to the evidence of claustrophobia resulted in prejudice to his central defence. Relying on the modified objective approach in assessing self-defence set out by the Supreme Court of Canada in R. v. Khill, Mr. Toth asserted that his claustrophobia was, “an experience or attribute relevant to assessing the reasonableness of his perceptions and conduct.” However, it appeared that Mr. Toth’s trial counsel did not consider the evidence of claustrophobia to be particularly helpful to him. She did not refer to it in her closing summation nor did she request a jury instruction on it. As Justice Fisher found, “she may have anticipated that the Crown might rely on the claustrophobia evidence to argue that Mr. Toth was already agitated by the time he encountered Mr. Ocampo, which turned into anger after the attack of pepper spray.”

Justice Fisher went on to conclude that defence counsel’s “failure to request an instruction” about the effect of Mr. Toth’s claustrophobia could not be interpreted as an “oversight” when viewed in the context of the record. She relied on the opinion of the eight member majority of the Supreme Court of Canada in R. v. Abdullahi where Justice Malcolm Rowe held that counsel’s silence may be relevant where there are indications that it was a tactical decision. “If the absence of an instruction at trial could have benefited the party who argues on appeal that it was required,” he said, “then the appellate court might ask whether counsel made the tactical decision not to seek the instruction at trial.” (here) It is trite that counsel cannot withhold an objection at trial and save it for appeal. And that brings me to the point I am making in this post. As Justice Rowe went on to hold in Abdullahi, “[a]ppellate courts are rightly hesitant to second-guess the tactical decisions of counsel, save to prevent a miscarriage of justice.” The silence of counsel may also be relevant to the application of the curative proviso in s. 686(1)(a)(iii) of the Code as silence may suggest that an error in a jury instruction was harmless in the circumstances.

(b) Failure to Give a Limiting Instruction on Lay Opinion

During cross-examination of Mr. Mataya, the security guard, trial counsel referred him to the transcript of his statement to the police where he said that due to the first push, Mr. Toth was, “probably just protecting himself”. However, after the second push, “I cannot say that he was also protecting himself.” The prosecutor sought to re-examine Mr. Mataya on the basis that this was contrary to what was contained later in the statement where he said the second push was not necessary because, “the elderly man walked away already”. Trial counsel did not oppose the re-examination and the video recording of the statement was played for the jury. There was no dispute that Mr. Mataya was not entitled to give his opinion on the legal question whether Mr. Toth acted in self-defence. The danger of permitting such opinions lies in the risk that a jury may uncritically accept a witness’ opinion without drawing their own conclusions about the evidence. Neither counsel referred to the opinion evidence in their jury summations and the distinction between Mr. Mataya’s factual evidence and his opinion evidence was not addressed by the trial judge in her instructions.

The primary argument on appeal was that the trial judge erred by failing to provide a limiting instruction about Mr. Mataya’s inadmissible opinion evidence. However, neither counsel raised the issue during the pre-charge conferences nor did they refer to it in their closing summations. Although defence counsel adduced Mr. Mataya’s opinion that Mr. Toth was “probably just protecting himself”, the opinion contained in the video statement touched on self-defence and the reasonableness of Mr. Toth’s conduct. Justice Fisher therefore concluded that defence counsel’s failure to seek a limiting instruction was not inadvertent and she sought to enter portions of the video statement into evidence for strategic reasons. “The instruction would have highlighted the admissible factual basis for the opinion of a witness whose testimony the defence sought to neutralize,” said Justice Fisher. Relying on the opinion of the Supreme Court of Canada in R. v. Calnen, Justice Fisher held that, “defence counsel’s failure to request a limiting instruction may reasonably be taken as an indication that the defence considered the charge to be satisfactory and a limiting instruction would not be in their client’s interests”. (here)

3. Conclusion

The broad rule may be simply stated. A failure to object by trial counsel is a factor to be considered on appeal but it is not controlling. The rule has been consistently restated throughout the jurisprudence in the Supreme Court of Canada in cases such as R. v. Daley where Justice Michel Bastarache held that, “[w]hile not decisive, failure of counsel to object is a factor in appellate review.” (here) In R. v. Minor, one of countless cases in the provincial courts of appeal, Chief Justice George Strathy of the Ontario Court of Appeal emphasized that a failure to object takes on a different meaning when based on tactical considerations. “[C]ounsel may have made a tactical decision not to request further instructions out of concern that the judge might re-emphasize damaging evidence,” he said. (here) Is there a narrow rule, then, against second guessing when counsel’s silence was grounded in a tactical reason? Let’s return to the opinion of the Supreme Court of Canada in Abdullahi where Justice Rowe said, “[a]ppellate courts are rightly hesitant to second-guess the tactical decisions of counsel, save to prevent a miscarriage of justice.” That sounds a lot like a rule to me.

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