COURT OF APPEAL FOR ONTARIO
Feldman, MacFarland and Karakatsanis JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Curnew
Appellant
James Stribopoulos and Lindsay L. Daviau, for the appellant
John Patton, for the respondent
Heard: June 29, 2010
On appeal from the conviction entered by Justice J.M. Wilson of the Superior Court of Justice on April 6, 2005, and the sentence imposed on June 28, 2005.
1Following a trial by judge alone the appellant was convicted on thirteen of seventeen charges, one of which was stayed pursuant to the Kienapple principle. Counts 1 through 8 related to various assaults on K.M., the complainant. Counts 9 through 13 related to the possession of two handguns and ammunition. Count 14 related to a breach of recognizance for possessing a weapon and counts 15 through 17 related to possession of cocaine for the purpose of trafficking.
2The appellant appeals both his conviction and sentence.
Sentence Appeal
3In relation to sentence, the appellant submits that subsequent to his sentence in relation to the thirteen charges of which he was convicted he was sentenced to a further period of incarceration for an unrelated offence. The sentence he received for that unrelated matter when added to the sentence received for the matters before this court amount to a penitentiary sentence. Accordingly, because the total sentence exceeds a reformatory sentence, the probationary part of the sentence before us has become unlawful. The Crown concedes that the probation imposed by the trial judge, in light of the ensuing events, cannot stand. That part of the sentence will accordingly be set aside.
Conviction Appeal
4The appellant raises two grounds of appeal. First, he argues that the trial judge erred in admitting into evidence the complainant’s prior inconsistent videotaped statement. Second, he argues ineffective assistance of counsel. This latter ground of appeal relates to an Agreed Statement of Facts which was entered into evidence following the appellant’s testimony at trial.
The Facts
5The complainant’s grandmother contacted the police on April 4, 2003. She was concerned for her granddaughter’s safety. The grandmother advised the police that a threat by the appellant included a threat with a weapon. Given the allegation of a weapon, police took the threat seriously and police were placed to observe the grandmother’s residence and to intervene if necessary.
6At 3:00 p.m. on April 4, 2003, Detective MacDonald and his partner attended at the grandmother’s home. They asked initial questions of the complainant. Based on their observations both officers concluded she had been assaulted. The police requested a videotaped statement from both K.M. and her grandmother. They were both willing to provide a statement and accompanied the police to the station. In her videotaped statement, K.M. described six different assaults that the appellant allegedly committed on her, since 2002. The final incident involved the appellant putting a gun on her and forcing her to strip naked, take a shower, and serve him drinks for an hour. After the incident was over, the complainant said she wrapped the gun in her pyjama bottoms and hid the gun in a shoe box amongst her clothes.
7On April 4, 2003, shortly before midnight, the appellant was arrested in a high-risk take-down. A digital scale was found in his jacket pocket and 9.97 grams of cocaine in a series of four baggies, was located on the passenger seat floor by the door. The police obtained a search warrant to search the residence of the appellant’s parents for a weapon as described by the complainant in her videotaped statement. The search warrant was executed shortly after midnight on April 5, 2003. In the appellant’s bedroom the police located two handguns, ammunition and potential drug related items, including an electronic scale, a grinder, various cutting agents and baggies. They also seized what appeared to be two debt lists dated 2001 and 2003.
8At trial the complainant recanted the allegations outlined in the videotaped statement. She claimed that when she gave the statement she was angry at the appellant for his infidelity, high on ecstasy and had had little sleep in days. She had continued her relationship with the appellant and had, one month before his conviction, given birth to his child. After a voir dire, the trial judge admitted the statement into evidence for the truth of its contents. The complainant was also declared adverse.
9The appellant testified and during his examination-in-chief alleged a complex police initiated conspiracy in defence of the possession charge. Immediately thereafter, the Crown notified the court of its intention to investigate the appellant’s allegation and call reply evidence. Defence counsel did not re-examine the appellant after cross-examination. Rather than calling reply evidence defence counsel and the Crown agreed to file an Agreed Statement of Facts (ASF) which touched on four narrow issues. The ASF clarified and corrected certain evidence which the appellant had given.
10The trial judge convicted the appellant on four of the eight assault charges, of pointing a firearm and five other gun-related charges and of breach of recognizance as the result of the gun convictions. He was also convicted of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime.
The KGB Statement
11First, the appellant argues that the trial judge improperly admitted the complainant’s KGB statement. His argument essentially is that the video recording does not meet the requirements established by the Supreme Court of Canada in R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740. The criticisms include that the camera was not close enough to the complainant, that there was no additional close-up photo within the frame showing the complainant at close range so that the trial judge could properly assess her demeanor, and that the faces of the interrogating officers were not shown.
12In my view, this argument is entirely without merit. First and foremost, video recording has come a long way in the seventeen years since KGB. The subject video, played during the argument of the appeal, is clear and focused. The complainant’s face is clearly visible at all times. While there was no second camera focused on the officers, their faces are clearly and adequately visible in profile. No complaint is made of the quality of the audio recording.
13It is clear from her reasons that the trial judge had no difficulty with the quality of the recording. Her reasons for judgment include the following observations in relation to the video recording:
[K.M.] recanted her videotaped statement. Her evidence at trial recanting the videotaped statement appeared flat, stilted and scripted. She simply denied any abuse and provided no explanation for her previous statement that was credible. There were moments during the trial, during her viva voce testimony where her evidence appeared to be true when she was not being asked directly about the allegations and she was “off script”. By way of contrast, her videotaped statement was credible, natural in its delivery and made sense. It was understated. She did not exaggerate.
In my view, the two officers conducted a professional, sensitive interview. They asked questions, but were not directive or leading in how they pursued the videotaped interview.
The videotape confirms that [K.M.] is angry and upset by Mr. Curnew’s conduct – not surprisingly. However, the thrust of her evidence was that the incident with the gun really, really frightened her.
There is no indication in the videotape of any exaggeration of events, there is no indication of any jealousy in her evidence. If anything, she understates what happened. She is angry about him arranging for her to go into debt. However, she realizes that by coming forward to the police, she will probably not see the money again.
Defence also raises the issue of the allegation that she had taken a narcotic, ecstasy, before providing the statement. I have previously ruled upon this issue. I concluded that she had not taken a narcotic or, if she had, it did not affect the quality and reliability of her evidence. I repeat that conclusion here. I reject the suggestion that [K.M.] had taken anything that affected the reliability or truthfulness of her disclosure made to the police in her videotaped statement.
14It is apparent from these comments as well as her ruling on the admissibility of the statement, that the trial judge had no difficulty with the quality of the video recording or with her ability to observe the complainant’s demeanor. In my view, the appellant’s interpretation of KGB is too narrow. That case does not require that, to be admissible, the video recording must be in the exact same format as the video recording was in that case. As Lamer C.J. explained at p. 793-94: “a complete videotape record of the type described above, or one which duplicates the experience of observing a witness in the courtroom to the same extent, is another important indicium of reliability” (emphasis added).
15The quality of the video recording was not raised as an issue at trial. The only issue raised at trial was voluntariness, where the defence argued that the complainant had had little sleep in the hours preceding the making of her video statement and was high on ecstasy at the time.
16In response to that argument, after reviewing the law relating to operating mind, the trial judge was satisfied that even if she accepted the complainant’s trial evidence in relation to the taking of the drug, any effects from her ingestion would have worn off in any event by the time she gave her statement and the quality and reliability of her evidence was not affected. It will be noted, however, that the trial judge did not accept the complainant’s evidence that she had taken drugs. Because it was not raised at trial, the quality of the video recording is not the subject of the trial judge’s ruling on the admissibility of the statement.
17However, in dealing with the voluntariness issue that was raised, there are findings made by the trial judge from which it may reasonably be inferred that she had no difficulty with the quality of the video recording. By way of example:
The most telling evidence, in my view, of an operating mind is the contents of the videotape, itself. The answers given by [K.M.] to the questions asked were spontaneous and natural. She included gestures by way of explanation.
The flow of her evidence was natural. She also exhibited a good memory for detail.
Throughout her statement she was co-operative, quiet spoken and provided her evidence in a clear, comprehensive manner.
I note that [K.M.] had no physical signs of any sort of impairment.
18In conclusion, it is obvious from her ruling on the voir dire as well as her reasons for judgment that the trial judge had no difficulty with the quality of the video recording and she was able to observe the complainant’s demeanor in a meaningful way.
19I would not give effect to this ground of appeal.
Ineffective Assistance of Counsel
20This ground of appeal concerns trial counsel’s agreement to file the Agreed Statement of Facts. The effect of that document was to undermine some of the evidence which the appellant had given at trial. He argues that the filing of that statement made him out to be a liar in the trial judge’s eyes. He argues that had his credibility not been impugned in this way, he might have been believed and the result would have been different.
21The appellant gave evidence at trial. In the course of giving that evidence he alleged a complex police initiated conspiracy in defence of the possession charge which included the alleged recycling of exhibits by the police from an earlier trial at which the appellant had been acquitted.
22There can be no question that the appellant was a difficult client who had his own ideas about how the trial should be run. In giving his evidence, the appellant’s answers implicated his trial counsel in the sense that he indicated that his allegations could be confirmed by his lawyer. Defence counsel was put in a difficult position in attempting to balance his duty to represent his client to the best of his ability and his duty as an officer of the court to ensure that the court is not misled.
23Defence counsel did not re-examine his client after cross-examination was complete. In my view, he cannot be criticized for his decision. Just to take one example, the appellant alleged that the debt sheet, which had been made an exhibit at trial and supported the charge of possession for the purpose, was the same document that had been made an exhibit at a trial before Matlow J. in 2003 where the appellant was acquitted for a similar charge. His evidence was that the police merely recycled that exhibit to support the charges against him in 2005. Trial counsel in 2003 and 2005 was the same lawyer. In his evidence the appellant indicated that trial counsel could prove his allegation. Trial counsel had compared the exhibits filed in 2003 and 2005 and knew they were not the same.
24The Crown indicated it would call reply evidence which would demonstrate the falsity of this allegation. Trial counsel determined that the filing of the Agreed Statement of Fact would be better than a string of witnesses who would prove the falsity of the appellant’s evidence with devastating effect.
25The appellant argues that the Agreed Statement was filed without his consent and that trial counsel did not inform him nor give him the opportunity to participate in it. This was a tactical decision and one properly available to him as an officer of the court.
26As Major J. noted in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34: “Where, in the course of a trial, counsel makes a decision in good faith and in the best interest of his client, a court should not look behind it save only to prevent a miscarriage of justice.”
27In G.D.B., Major J. noted:
27Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this analysis.
28Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.
29In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697).
28This court must first consider whether the alleged incompetence resulted in a miscarriage of justice. In my view, there can be no doubt on this record that there has been no miscarriage of justice.
29The trial judge rejected the appellant’s evidence but in so doing did not rely solely on the Agreed Statement of Facts. Her reasons for judgment make it clear that she rejected the appellant’s evidence for many reasons and not just on the basis of the Agreed Statement of Facts.
30Starting at p. 21 of her reasons, she described the appellant as follows:
He was an arrogant, nonresponsive witness. He blamed the system for the false accusations and the conspiracy against him. He was always the victim. He was volatile and angry in giving his answers, although he tried very hard to contain his reactions.
His story and version of events often bordered on the fantastical. It appeared that he just made things up as he went along. If there ever was a plan, with his counsel being aware of the theory of the defence, it appears that Mr. Curnew did not follow the plan.
Andrew Curnew aggressively asserted facts and events which were proved conclusively beyond a reasonable doubt in reply evidence not to bear any resemblance to the truth.
When giving answers, Andrew Curnew was cagey. He tried to figure out what the question was and what its relevance was before providing an answer. He had his own agenda. I do not accept his evidence. His manner and attitude in testifying speak volumes, however, with respect to the nature of the relationship and the dynamic of control exerted by Andrew Curnew in his relationship with [K.M.]
Andrew Curnew was always right, and others are always to blame. This quality was obvious from his testimony before the court as he spun an incredible web to try to explain away significantly incriminating evidence. According to him, he was the victim of an elaborate police conspiracy.
The tape recording of the various telephone calls1 confirms that Andrew Curnew is always right and that others, including [Ms. M.], “fuck things up”.
Andrew Curnew is an angry, explosive person. These qualities were obvious from both his testimony and, in particular, from three recorded telephone calls.
Andrew Curnew acknowledged that he broke [Ms M.’s] nose. He was faced with the awkward observation of two police officers who confirmed that on April 4th, 2003, that each of them observed the cut on [Ms. M.’s] nose and swelling around her eye. Andrew Curnew then fabricated some story that he accidentally broke [Ms. M.’s] nose when she hit a snowbank while driving a car. At one point he says he was asleep and his arm accidentally flung out and hit her nose. Later, he said it was a protective reaction towards her in the context of an accident. I do not accept either explanation. It is part of the elaborate web to cover the truth. I note, as well, that [Ms. M.] simply denied that he broke her nose. She did not outline any accident theory in her evidence.
I do not accept the evidence of Andrew Curnew that he accidentally hit [Ms. M.] on the nose when she drove into a snowbank. It bears no air of reality. At one time, he said it was an accident and it occurred while he was asleep; on another occasion, he said it was his reaction to protect her. I do not accept either explanation.
The suggestion by Andrew Curnew that the drugs were planted by the police, or that they had previously seized from another person, a Mr. Barry Curnew, not a relative, was fantastical.
The items located by the police in the accused’s bedroom were also evidence of trafficking. This included an electric scale, which had a white residue on its surface, according to Officer Eagleson. I accept the evidence. The scale was accurate to one-one hundredth of a gram. I do not accept Mr. Curnew’s explanation that this scale was used in his courier business.
31It is apparent that the trial judge had many reasons for rejecting Mr. Curnew’s evidence apart from the Agreed Statement of Facts. In such circumstances, the result of the trial would necessarily have been the same. There is no miscarriage of justice and accordingly no need to review the conduct of defence counsel at trial.
32I would give no effect to this ground of appeal.
Conclusion
33I would allow the sentence appeal and set aside the probation order. In all other respects I would dismiss the appeal.
RELEASED: November 12, 2010 “KF”
“J. MacFarland J.A.”
“I agree K. Feldman J.A.”
“I agree Karakatsanis J.A.”
