DATE: 2001-05-01

DOCKET: C26367

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– KRISHUNDATT PERSAD (Appellant)

BEFORE: CHARRON, SHARPE and SIMMONS JJ.A.

COUNSEL: Chris N. Buhr and Jennifer Gleitman, for the appellant David Finley and Philip Perlmutter, for the respondent

HEARD: April 12, 2001

On appeal from the conviction imposed by Justice David G. Humphrey, sitting without a jury, on November 5, 1996 and from the sentence imposed by Justice Humphrey on December 9, 1996

O R A L E N D O R S E M E N T

[1] The appellant was convicted and sentenced to three years’ imprisonment on four arson-related charges following his trial before Humphrey J. sitting without a jury. He appeals against his convictions on three grounds and seeks leave to appeal his sentence.

[2] First, the appellant submits that the trial judge erred in concluding that his s. 8 Charter rights were not infringed when the police obtained samples collected by the fire marshal at the scene without first obtaining a search warrant. In support of this ground of appeal, the appellant relies mainly on R. v. Colarusso (1994), 1994 CanLII 134 (SCC), 87 C.C.C. (3d) 193, a decision of the Supreme Court of Canada released after the seizure in question, but before his trial.

[3] Regardless of the correctness of the trial judge’s ruling with respect to the s. 8 violation, we are of the view that the trial judge did not err in refusing to exclude the evidence under s. 24(2) of the Charter. There was no evidence at trial that the fire marshal had acted outside the scope of her statutory authority when she collected the samples that were sent to the Centre of Forensic Science for analysis. The samples, and the test results derived from their analysis, were not conscriptive evidence and it is conceded that their admission did not affect the fairness of the trial. There is no dispute that the police were acting in good faith when they obtained these samples. Further, when advised of the Colarusso decision, the police returned the samples and obtained a search warrant to validate the subsequent seizure. In these circumstances, it was certainly open to the trial judge to conclude that the admission of the evidence would not bring the administration of justice into disrepute. We would therefore not give effect to this ground of appeal.

[4] Second, the appellant submits that the trial judge erred in reversing the onus of proof when, following the completion of the evidence at trial, he asked defence counsel to make submissions on who, other than the accused, might have set the fire. This comment, made during an exchange between the trial judge and counsel, in our view amounted to no more than a legitimate direction to defence counsel to focus his submissions on the central issue in the case, namely the identity of the arsonist. We see no merit to this ground of appeal.

[5] Third, the appellant submits that trial counsel was incompetent in arguing the s. 8 Charter application on a basis that was doomed to fail. It is submitted that trial counsel failed to marshal evidence that was available to support the s. 8 application, and also prejudiced the appellant’s position at trial when the incendiary nature of the fire was admitted at the conclusion of the unsuccessful Charter application. It is further argued that trial counsel could and should have brought a constitutional challenge to the Fire Marshals Act, R.S.O. 1990, c. F-17, particularly having regard to the decision in Colarusso. It is submitted that the sections of the Fire Marshals Act allowing for the entry, search and seizure powers of the fire marshal should have been challenged on the basis that the legislation was ultra vires the province of Ontario or, in the alternative, that the investigative powers contained in the Fire Marshals Act violated s. 8 of the Charter. It is submitted that there is a reasonable probability that this alternative basis for the s. 8 Charter application would have proven successful and that the evidence would have been excluded under s. 24(2) thereby affecting the verdict.

[6] With respect to this ground of appeal, the comments of the Supreme Court of Canadain R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 are particularly instructive. The Supreme Court reviewed the general approach to take when determining a claim of incompetent representation. Both a performance component and a prejudice component must be considered, with the prejudice component requiring the establishment of a miscarriage of justice. Where it isapparent that no prejudice has occurred, the Supreme Court cautions that it would usually be undesirable for appellate courts to consider the performance component of the analysis. In accordance with this approach, we consider firstly whether there was a miscarriage of justice.

[7] We are not satisfied that a miscarriage of justice resulted from counsel’s actions or omissions. In our view, even if the suggested constitutional challenge succeeded, it would not affect the result with respect to the exclusion of the evidence under s. 24(2). The legal foundation for the fire marshal's authority would disappear, but based on the record before us, a finding that the fire marshal had acted in good faith would be inevitable. Further, the appellant has not discharged the burden of establishing that the other relevant considerations under s. 24(2) would be different in any material way. In view of our conclusion that no miscarriage of justice resulted from counsel's conduct of the trial, we find it inappropriate to embark on an analysis of counsel's performance. Consequently, it is not necessary to consider the motion to introduce fresh evidence.

[8] For these reasons, the appeal against conviction is dismissed.

[9] With respect to the appeal against sentence, it is our view that there is no reason to interfere with the sentence imposed. Leave to appeal the sentence is granted but the appeal against sentence is dismissed.

(signed) “Louise Charron J.A.”

(signed) “Robert J. Sharpe J.A.”

(signed) “J. Simmons”