COURT OF APPEAL FOR ONTARIO
Feldman, MacFarland and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Labelle
Appellant
Delmar Doucette, for the appellant
Mabel Lai, for the respondent
Heard and released orally: January 17, 2014
On appeal from the conviction entered on August 27, 2010 by Justice Timothy A. Culver of the Ontario Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant was charged on two separate informations arising out of the same events. On one he was charged with attempt to obstruct justice, threatening to cause bodily harm and breach of recognizance. The other involved drug offences and a breach of probation. He was tried on the first information by Justice Culver. The only witness was Mr. Baner. The appellant did not testify. He was convicted on all counts.
2In the second trial Mr. Baner testified and the appellant also testified before Justice Agro. In that case the appellant was acquitted. The trial judge found that she believed the appellant and effectively disbelieved Mr. Baner. The evidence in the second trial overlaps significantly with that in the first trial.
3The appellant appeals his convictions on the first trial, on two grounds: 1) that the reasons of the trial judge were inadequate, and 2) ineffective assistance of counsel.
4The second ground is based on the allegation of the appellant that his lawyer did not advise him that it was his decision whether to testify and that he agreed not to testify because that was what his lawyer told him to do and he believed he had no choice.
5In our view this appeal must succeed on the first ground. The trial judge’s reasons were brief. That is not the basis of our finding of error. The trial judge is entitled to be brief. The difficulty is that the evidence of Mr. Baner was inconsistent and confused. The trial judge acknowledged those problems but essentially discounted them without giving an explanation of why he did so and why he was satisfied beyond a reasonable doubt.
6In R. v. Vuradin, 2013 SCC 38, [2013] S.C.J. No. 38, a recent decision of the Supreme Court of Canada dealing with the sufficiency of reasons, the Supreme Court stated the test at para. 15 as follows: “The core question in determining whether the trial judge’s reasons are sufficient is the following: ‘Do the reasons, read in context, show why the judge decided as he did on the counts relating to the complainant’?” See also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 126-129.
7In our view the reasons for conviction in this case do not meet the test set out in Vuradin. It is not clear how the trial judge resolved the problems with the complainant’s testimony. In our view the appeal must be allowed on this ground and a new trial ordered on all three counts.
8Dealing with ground 2), the fresh evidence does not satisfy us on the balance of probabilities that the trial counsel did not advise the appellant that whether to testify was his own decision. We would not give effect to the ineffective assistance of counsel ground.
“K. Feldman J.A.”
“J. MacFarland J.A.”
“S.E. Pepall J.A.”