Court of Appeal for Ontario

Date: 2017-10-23 Docket: C58226

Judges: van Rensburg, Pardu and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Gergy Gorburn Appellant

Counsel

Gergy Gorburn, acting in person

Avene Derwa, for the respondent

Heard

October 3, 2017

Appeal Information

On appeal from the convictions entered by Justice Glenn Hainey of the Superior Court of Justice on July 8, 2013, and from the sentence imposed on August 30, 2013.

Reasons for Decision

Overview

[1] The appellant was convicted of numerous firearm and drug related offences. He received a global sentence of four and a half years custody, before 28 months credit for pre-sentence custody. He appeals from both conviction and sentence.

Ineffective Assistance of Counsel Claim

[2] The appellant maintains that he was provided with ineffective assistance of counsel at trial and that this resulted in a miscarriage of justice. He swore an affidavit in support of this claim. His primary complaint rests on what he argues was counsel's failure to seek the exclusion of evidence seized by the police during what he says was an unlawful detention and search.

Facts Regarding the Search and Seizure

[3] The police received information that someone known as "T.K." was selling drugs at a specified apartment building. The police were told where T.K. typically parked and that he was possibly armed with a gun. The police also learned that T.K. was part of a criminal gang associated with the apartment complex. The police were shown video footage that was said to capture the person who was believed to be selling the drugs.

[4] The police then set up surveillance on the building's parking area. They recognized the appellant from the video when he pulled into the parking lot. The appellant was ordered out of his vehicle and detained, after which he was subjected to a pat down search. After feeling something hard, the searching officer looked inside of the appellant's pocket and located crack cocaine. The appellant was arrested and his vehicle was searched incident to arrest. Police located a loaded firearm, ammunition, drugs, and drug paraphernalia.

Trial Counsel's Position

[5] Trial counsel provided an affidavit responding to the claim of ineffective assistance. He explained that he was able to clearly identify his client from the video stills provided in disclosure, which were taken from the video seen by the police in advance of the appellant's arrest. Trial counsel formed the view that the police were in a position to lawfully arrest his client and were justified in searching him because of the information they received that he may be armed. In trial counsel's view, whether the appellant was arrested just before or after the search was immaterial on these facts. In any event, trial counsel formed the view that even if there was a Charter breach, the evidence would have been admitted under s. 24(2). In these circumstances, he saw no merit in advancing a Charter claim.

Crown's Position

[6] It is Crown counsel's position that there was no Charter breach and, if there was, the evidence would not have been excluded under s. 24(2). Crown counsel acknowledges that there were insufficient grounds to arrest the appellant when he was first approached by the police. We agree. However, Crown counsel maintains that the appellant was properly detained for investigation and that a safety search was justified. Crown counsel argues that once the police found the crack cocaine in the appellant's pocket, they had grounds to arrest and search him incident to the arrest.

Legal Framework for Ineffective Assistance of Counsel

[7] This ground of appeal is rooted in an ineffective assistance of counsel claim. There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27; and R. v. Joanisse (1995), 85 O.A.C. 186 (C.A.), at para. 72. The questions on appeal are whether counsel's conduct fell below the standard of reasonable professional assistance and, if so, whether the ineffective representation resulted in a miscarriage of justice: see Joanisse, at paras. 69-71; and R. v. Stark, 2017 ONCA 148, 35 C.R. (7th) 455, at paras. 12-14. A miscarriage of justice can arise where the ineffective representation undermines the appearance of fairness or the reliability of the verdict: see R. v. Archer (2005), 203 O.A.C. 56, at para. 120; and Stark, at para. 14. As noted in Archer, at para. 120, "[a] verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different."

Court's Analysis of Charter Claim

[8] It is unnecessary to consider whether trial counsel's assessment as to whether the appellant was arrestable at the time of the pat down search fell below the standard of reasonable professional assistance because there was no miscarriage of justice in this case. Neither fairness, nor the reliability of the verdict were compromised by the alleged incompetence: see Archer, at para. 121.

[9] Nothing turns on the fact that trial counsel held the view that the police were in a position to lawfully arrest the appellant at the time he was originally searched. Based on the disclosure available to trial counsel at the time, the police had ample grounds to detain the appellant for investigation. Given that the police had been informed that the suspect may be part of a criminal gang and carrying a firearm, the pat down search for safety reasons was justified. Based on all of the circumstances, it appears that the police may well have been justified in searching the appellant's pocket once something hard was located.

[10] While further exploration of the facts on a Charter voir dire may have supported or undermined the grounds for looking in the appellant's pocket, it cannot be said that the failure to pursue an application to exclude evidence resulted in a miscarriage of justice. This is particularly true given that, even if there was a Charter breach, there is no evidence to suggest that the appellant would have met his onus in having the evidence excluded under s. 24(2) of the Charter. To the contrary, he was lawfully detained at the time he was patted down. The pat-down search itself was justified in the circumstances. The search of his pocket occurred in potentially volatile circumstances. The search revealed reliable evidence. All of these factors would have pointed away from exclusion.

[11] We are not satisfied that in these circumstances, counsel's decision not to pursue exclusion demonstrates an absence of reasonable professional assistance and, in any event, there was no miscarriage of justice.

Other Claims of Ineffective Assistance

[12] In addition, the appellant raises arguments that his trial counsel failed to provide him with timely disclosure and failed to call certain witnesses. He maintains that these things also demonstrate ineffective assistance.

Disclosure Issue

[13] Trial counsel disputes the claim that he did not provide his client with disclosure, maintaining that he visited him multiple times in jail and specifically went over the disclosure with him. Regardless, the appellant was present at the preliminary inquiry in this matter. The narrow issue in this case was one of knowledge. By the time of trial, the appellant clearly understood the prosecution case he was facing.

Witness Issues

[14] Nor do we accept that trial counsel failed to call certain witnesses or, if he had called them, that it would have made any difference. The appellant claims that trial counsel failed to call three witnesses: the registered owner of the van in which the firearm was located; his spouse; and the mechanic who had done work on the vehicle. Trial counsel maintains that the owner of the van knew nothing about the gun and wanted nothing to do with the matter. Other than the appellant's claim, we do not see any evidence to the contrary. As for the appellant's spouse, we are not satisfied she had relevant evidence to give. As for the mechanic, we accept that while trial counsel took steps to locate him, he was not successful. In any event, we do not see how the evidence about the van needing repairs would assist on the primary issue of knowledge at trial.

Counsel's Absence on First Day of Trial

[15] Finally, the appellant argues that his trial counsel failed to show up on the first day of trial and this is another example of his ineffective representation. While trial counsel accepts that he missed the first day of trial, it was due to a scheduling error. His failure to attend on the first day had no impact on the trial and it was still completed on time.

Conclusion on Conviction Appeal

[16] The appellant has failed to demonstrate that he received ineffective representation or that there was a miscarriage of justice. The conviction appeal is dismissed.

Sentence Appeal

[17] While the appellant originally sought leave to appeal sentence, he did not pursue it in oral argument. We see no error in the trial judge's reasons on sentence. Having regard to all of the circumstances, it was a fit sentence.

Final Order

[18] The conviction appeal is dismissed. Leave to appeal sentence is dismissed.

K. van Rensburg J.A.

G. Pardu J.A.

Fairburn J.A.