Court File and Parties

Court of Appeal for Ontario Date: 2022-01-19 Docket: C66770

Between: Her Majesty the Queen, Respondent

And: Shiva Ashkani, Appellant

Before: Tulloch, Pardu and Harvison Young JJ.A.

Counsel: Shiva Ashkani, in person Nicole Rivers, for the respondent

Heard: January 11, 2022 by video conference

On appeal from the conviction entered on December 12, 2017 by Justice A.J. O’Marra of the Superior Court of Justice.

Reasons for Decision

[1] The appellant, who held herself out as a registered nurse, both qualified and physician supervised as a medical cosmetician to inject Botox and collagen fillers, was found guilty after trial of having committed a number of assaultive offences that resulted in injuries to a number of victims. Following a trial by judge alone, she was found guilty of fraud under $5000 by misrepresentation, three counts of assault with a weapon (a syringe), aggravated assault, assault causing bodily harm, assault, and threatening bodily harm. She was sentenced to a total sentence of two years less a day with a three-year probation period to follow.

[2] In her appeal, the appellant claims that her trial counsel provided ineffective assistance. She bases this principally on two grounds; first, that her counsel failed to respect her wish for a jury trial, and second, that her counsel refused to permit her to testify on her own behalf. She also claims that her trial counsel failed to take her mental health challenges into account.

[3] We do not accept these submissions.

[4] In order to succeed on an appeal based on an allegation of ineffective assistance of counsel, an appellant must establish the facts upon which the allegation is based on a balance of probabilities: R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.) at para. 119. The appellant has not done this with respect to either the allegation that her trial counsel ignored her wish to be tried by a jury or that he refused to permit her to testify.

[5] We note that the appellant did initially elect a jury trial but re-elected on the day of trial. She provides no details in her affidavit of any conversations that support her position. Mr. Mills, on the other hand, states in his affidavit that they discussed the matter in advance of the trial and before re-election. On cross-examination, Mr. Mills clarified that this discussion took place on the morning of trial. He expressed the view in his affidavit that a judge alone would be more receptive to the argument that the complainants consented to the treatments not because of the appellant’s representations as to her credentials but because of the price charged and the convenience of treatment in a non-clinical setting. The appellant was present in the courtroom at the time of re-election, did not object to the waiver of the re-reading of the indictment and expressed no disagreement with the re-election.

[6] The appellant also fails to establish the factual basis for her claim that her former lawyer refused to permit her to testify. Once again, her allegations in this regard are vague and lack specificity, unlike the facts set out in Mr. Mills’ affidavit.

[7] Mr. Mills explained, on cross-examination, that one of the factors leading him to advise her not to take the stand on her own behalf was that doing so would open her up to cross-examination on her prior conviction for aggravated assault. Second, he was of the view that the appellant had a tendency to be disruptive and this would not help her. Third, she was also inclined to raise irrelevant issues. Mr. Mills did acknowledge that she was reluctant but said that she took his advice and made the decision not to testify. In our view, Mr. Mills’ reasons for advising her not to testify on her own behalf were well founded and the appellant has not established that his advice was outside the range of professional judgment.

[8] The appellant also claims that her counsel did not take adequate account of her mental health issues. This too is unfounded. Counsel was aware that the appellant had mental health challenges, that she was being treated, and that, according to a letter from her psychiatrist, was showing improvement. While her challenges required patience on his part, his experience was that she did understand the process and he had no basis to think that plea of NCR or a finding that she was unfit to stand trial would have been available. Indeed, assessments conducted between the trial and the sentencing confirmed this.

[9] The appeal is dismissed.

“M. Tulloch J.A.”

“G. Pardu J.A.”

“A. Harvison Young J.A.”