COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Linofiel Eroma
Applicant/Appellant
Philip B. Norton, for the applicant/appellant
Riun Shandler, for the respondent
Heard: March 26, 2013
On appeal from the conviction entered on April 9, 2010 by Justice John B. McMahon of the Superior Court of Justice.
ENDORSEMENT
I. Background
1The appellant was convicted of possession of a weapon for a dangerous purpose and aggravated assault following an incident of road rage in the City of Toronto. He was sentenced to 90 days’ incarceration, to be served intermittently, plus three years’ probation.
2The appellant appeals from his convictions on the sole ground of ineffective assistance of counsel. He argues that his trial counsel, by failing to follow the appellant’s instructions that he wanted to testify in his own defence at trial, conducted himself in a manner that amounted to professional incompetence or otherwise contributed to a miscarriage of justice, thereby necessitating a new trial.
3In our view, based on the trial record and the fresh evidence filed by the appellant, the appeal must be allowed.
II. Discussion
4There is no dispute regarding the governing test to establish a claim of ineffective assistance. As explained by this court in R. v. B.(M.), 2009 ONCA 524, at paras. 8-9 and R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at para. 69, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at para. 57, to succeed on this ground of appeal, the appellant must demonstrate:
(1) the facts that underpin the claim of ineffective assistance, on a balance of probabilities;
(2) the incompetence of trial counsel’s representation; and
(3) that a miscarriage of justice resulted from the incompetent representation at trial.
5In this case, the Crown concedes that if the appellant has established that he would have testified at trial but for his trial counsel making the decision that he would not testify, the record reveals a miscarriage of justice warranting a new trial. In light of this court’s decision in R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60, at paras. 119 and 140-41, this is a proper concession.
6On the particular facts of this case, we are persuaded that the appellant has established the facts that underpin his ineffective assistance claim. The record of the trial proceedings and the fresh evidence filed by the appellant indicate that:
(i) despite repeated efforts by both the appellant and the Crown, and direct orders of this court, the appellant’s trial counsel has failed to respond in any way to the appellant’s allegations against him and has failed to provide the trial brief or any associated documents to the appellant or the Crown;
(ii) throughout his dealings with him, the appellant instructed his trial counsel that he wished to testify at trial. On the appellant’s uncontradicted evidence, he maintained this position at trial and kept waiting for the opportunity to testify;
(iii) had he been permitted to testify at trial, the appellant’s testimony would have: (1) challenged the complainant’s credibility; (2) challenged part of the evidence of the alleged eyewitness to the assault; (3) sought to corroborate other defence evidence led at trial; and (4) also sought to cast some doubt on the Crown’s assertion that the appellant was not acting in self-defence;
(iv) throughout the trial, the appellant required the assistance of a Tagalog interpreter. The appellant maintains that he did not understand some of the remarks by his trial counsel and the trial judge, in particular, when his counsel indicated that he was not going to call any evidence. The appellant has sworn that, at critical times, the interpreter and counsel or the judge were speaking at the same time and, as a result, the appellant did not understand what was transpiring; and
(v) the appellant’s trial counsel, after the appellant’s trial, was disbarred by the Law Society of Upper Canada based, in part, on complaints from other clients that he failed to obtain or follow their instructions. The timing of some of the incidents giving rise to these complaints coincides with the timing of the appellant’s trial.
7In the absence of some explanation or response from the appellant’s trial counsel, which has not been forthcoming through no fault of the appellant, the appellant’s claim that he instructed his counsel throughout that he wished to testify and that he was effectively prevented from doing so by his counsel stands uncontradicted. In these circumstances, the presumption of trial counsel’s competency is of greatly diminished force.
8There is no doubt that the appellant’s decision whether to testify in his own defence was his alone to make. Based on this record, we are satisfied that the appellant has established on the balance of probabilities that he wished to testify at his trial and that his instructions to counsel in this regard were ignored or overridden by the appellant’s trial counsel. In these circumstances, as the Crown candidly acknowledges, there is every possibility that the appellant’s trial representation occasioned a miscarriage of justice. Accordingly, a new trial is required.
III. Disposition
9For the reasons given, the application to introduce fresh evidence is granted, the appeal is allowed and a new trial is ordered. We are confident that the Crown will exercise its discretion whether to proceed with a new trial appropriately, having regard to the unique and most unfortunate circumstances of this case.
“J. Simmons J.A.”
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”
