DATE: 20050516

DOCKET: C40989

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAGLAL ROSHAN SEEPERSAD (Appellant)

BEFORE:

ROSENBERG, BLAIR and JURIANSZ JJ.A.

COUNSEL:

Raj Nepal

for the appellant

Nadia E. Thomas

for the respondent

HEARD & RELEASED ORALLY:

May 11, 2005

On appeal from the judgment of Justice Douglas B. Maund of the Ontario Court of Justice dated October 17, 2002.

E N D O R S E M E N T

[1] The appellant seeks a new trial based on the ineffective assistance of counsel. His primary submission is that trial counsel failed to call the appellant’s wife as an alibi witness.

[2] Counsel at trial deposed on this appeal that he had previously interviewed the wife and reviewed her statement to the police, and that he assessed her as a weak witness. He testified further that he had deliberately called the accused as a witness first in order to determine whether it would be necessary for the wife to give evidence. He says that during a five-minute recess following the apellant’s testimony, in which he and the appellant discussed the pros and cons of calling the wife as a witness, they agreed not to do so because her testimony might well undermine that of the appellant.

[3] There were two principal difficulties with the wife’s proposed evidence. First, she had told the police that her husband had been “crazy upset” with the complainant – evidence that would contradict the appellant’s story on an important point. Secondly, her testimony did not provide a complete alibi because she acknowledged there was about a fifteen-minute interval during which the appellant was not in her physical presence at the relevant time. Counsel decided not to call her, based on these considerations.

[4] Mr. Seepersad’s evidence on appeal is that he insisted at all times that his wife be called to testify.

[5] The threshold for establishing ineffective assistance of counsel is high. The appellant must establish on a balance of probabilities two components: 1) that viewed against an objective standard, the acts or omissions of trial counsel were so unreasonable that they fell outside of the broad range of professional standards of reasonable skill and judgment – i.e. the performance component of the test, and 2) that a miscarriage of justice resulted from the incompetence – i.e. the prejudice component of the test. The performance component is governed by a standard of reasonableness and hindsight plays no role in the assessment. Counsel’s performance is assessed in the particular circumstances of the case and from the point in time when counsel made the decisions challenged on appeal. Counsel’s choices are entitled to a high degree of deference by appellate courts. Further, the competence assessment is informed by a presumption in favour of competence. See R. v. B.(G.D.) (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 (S.C.C.) at para 26-35; R. v. Joanisse, (1995), 1995 3507 (ON CA), 44 C.R. (4th) 364 (Ont. C.A.) at 385-393; R. v. Wells, 2001 24130 (ON CA), [2001] O.J. No. 81 (Ont. C.A.) at para. 56-76.

[6] We are not persuaded, based on the record as a whole, that trial counsel disregarded the appellant’s instructions. Having obtained a brief adjournment specifically to discuss this very issue with his client, we think it unlikely that trial counsel would immediately proceed to disregard those instructions. Trial counsel gave, and had reasonable grounds for, not calling the wife as a witness. The appellant’s explanation as to where his wife was at this time, who communicated with her and what was communicated to her, cannot be accepted.

[7] In addition, we are not persuaded that there is a reasonable probability that the result would have been different had trial counsel done what the appellant submits should have been done, or that there was a miscarriage of justice.

[8] The appellant raised other subsidiary arguments on the conviction appeal as well. He complains that he wanted a jury trial but did not get one. He contests the alleged failure of his trial counsel and that counsel’s predecessor to interview various potential witnesses, to pursue a “set-up” theory as part of the defence, and to gather and present certain expert evidence.

[9] These decisions and the reasons for not pursuing those avenues are all adequately explained on the record. The appellant has failed to convince us that the obtaining and calling of any of the evidence mentioned would have affected the result and hence that the onerous B(G.D.) test had been met with respect to those grounds.

[10] There was abundant evidence before the trial judge to support his finding of guilt based on the complainant’s testimony and the physical evidence supporting it.

[11] Accordingly, the appeal as to conviction is dismissed.

[12] As to the sentence appeal, leave to appeal is granted, but the appeal is dismissed. We can find no error in principle in the trial judge’s disposition, and the sentence of two years less a day is well within the range for a crime of this nature and an offender such as the appellant. As the trial judge noted, the actions of the appellant were “calculated and cold-blooded” and amounted to the torture of a young man over whom he held a position of authority.

[13] The appeal as to conviction is dismissed. Leave to appeal sentence is granted, but the appeal as to sentence is dismissed.

“M. Rosenberg J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”