Court of Appeal for Ontario

Citation: R. v. Mends, 2007 ONCA 669

Date: 2007-10-01

Docket: C41794

Between:

Her Majesty the Queen (Respondent)

and

Lawrence Frank Mends (Applicant)

Before: Rosenberg, Gillese and MacFarland JJ.A.

Counsel: Lawrence Frank Mends in Person Delmar Doucette Amicus Curiae Sandra Kingston for the respondent

Heard: September 19, 2007

On appeal from conviction by Justice Joseph Quinn of the Superior Court of Justice, sitting with a jury, dated April 5, 2004.

BY THE COURT:

[1] The appellant appeals his convictions for the first degree murder of his two-year-old son and the aggravated assault of his common-law spouse. At his own request, the appellant was not represented by counsel. The court appointed Mr. Delmar Doucette to act as amicus curiae. Mr. Doucette raised a number of issues on behalf of the appellant and also assisted the appellant in his presentation of his argument. We wish to record the court’s appreciation for Mr. Doucette’s assistance in this difficult case. For the following reasons, the appeal is dismissed.

INEFFECTIVE ASSISTANCE OF COUNSEL

[2] The principal ground of appeal raised by both the appellant and Mr. Doucette concern allegations that the appellant did not receive effective assistance of counsel from his trial lawyer. Prior to the trial, the relationship between the appellant and his trial counsel deteriorated, at least in part, because trial counsel had presented to the appellant options of pleading guilty to second degree murder or relying on a defence of not criminally responsible on account of mental disorder.

[3] As we will describe below, the case that the appellant killed his son was overwhelming. The options presented to the appellant by his trial counsel were not only reasonable but he would have been derelict in his duty not to have explored these options with Crown counsel and the appellant. The appellant rejected both options. He denied that he killed his son and asserted that he was not mentally ill. Trial counsel accepted those instructions and attempted to prepare for trial. Regrettably, the appellant thereafter refused on many occasions to meet with his counsel or provide him with instructions concerning the conduct of the case. Prior to the trial, counsel attempted to remove himself from the record, but this motion was not ruled upon since the appellant seemed to be willing to continue his relationship with counsel. The difficulties continued, but the appellant never asked to have counsel removed from the record.

[4] Both the appellant and amicus argued that the appellant did not have the effective assistance of counsel. The appellant argued that his counsel was inexperienced and incompetent. Amicus argued that due to the breakdown in the relationship, the appellant did not receive competent representation. We deal first with the appellant’s submissions.

[5] The appellant’s submissions all centre on his claim that he did not commit the offence and that trial counsel should have cross-examined the various Crown witnesses to demonstrate that he did not kill his son. As we have said, the evidence was overwhelming that the appellant killed his son. There was no cross-examination that could have undermined this fact. The uncontradicted evidence showed that the appellant attended at the home of his estranged wife, struck her with a hammer and, when she fled the home, he was alone with the deceased. There was no one else in the house during the short time that the child was strangled and then repeatedly stabbed. On that evidence alone, the appellant would have been found to be responsible for the killing of his son.

[6] The Crown adduced other evidence. The appellant’s palm print was found on a knife that was undoubtedly used to stab the deceased. The appellant complains that counsel should have cross-examined the fingerprint examiner on the theory that the local police and the RCMP conspired in some way to incriminate him with the fingerprint evidence. This theory is based on the fact that the appellant’s name was spelt incorrectly on one form and that the examiner therefore obtained another set of prints from the RCMP. This theory is patently absurd and trial counsel properly avoided any such cross-examination.

[7] DNA evidence showed that the deceased’s blood was found on the appellant’s shirt. The appellant suggests that defence counsel should have cross-examined the DNA expert to the effect that experts make mistakes. There was no point to any such examination. The appellant had been at the scene, his son had been stabbed many times. The suggestion that someone else’s blood was on the appellant’s shirt is also absurd.

[8] The appellant submits that trial counsel should have cross-examined his spouse. There was no point to any such examination, at least as it related to the issue of who was responsible for the killing. There was no contest at trial or even now that the appellant was in the house at the time of the killing and that his spouse did not actually see the appellant stabbing his son. There was no cross-examination that could have been conducted of the spouse that would have advanced the appellant’s theory that he did not commit the offence.

[9] To obtain a new trial on the basis of ineffective assistance of counsel, the appellant must show that counsel’s acts and omissions constitute incompetence and that a miscarriage of justice resulted from this incompetence. Insofar as the appellant bases his incompetence argument on the theory that he did not kill the deceased, he meets neither branch of the test. Counsel’s decisions not to cross-examine on the matters about which the appellant complains were reasonable and, in any event, the failure to cross-examine did not prejudice the appellant in any respect.

[10] Amicus presents a more focused ineffective assistance of counsel argument. He submits that there was a real issue at trial as to whether the murder was planned and deliberate. He submits that a critical piece of evidence relied upon by the Crown concerned the testimony of the appellant’s spouse about a threat the appellant made to her shortly before the killing. He submits that defence counsel should have cross-examined this witness to demonstrate that they had an on-going relationship and attempt to show that he did not threaten her in the telephone call.

[11] It is important to understand the factual context for this submission. At the time of the killing, the appellant was on bail as a result of having assaulted his wife. He was to go on trial the next day for this assault charge. It was a term of his bail that he stay away from his spouse. Counsel for the Crown did not lead any of this evidence. At the end of the spouse’s direct evidence, all that the jury knew was that the next day the spouse was to testify about something in relation to the appellant. As Crown counsel, Ms. Kingston, points out, cross-examination of the spouse on the relationship was very much a double-edged sword. Had defence counsel cross-examined to attempt to establish an on-going relationship, the Crown would have been entitled to lead evidence of the earlier assault and the fact that the appellant was on bail for that offence and was about to go to trial for that charge the day after the killing.

[12] This evidence would have significantly strengthened the Crown’s case that this was a planned and deliberate murder. It would have provided evidence of animus towards the spouse, strengthened the revenge motive alleged by the Crown and provided evidence of a motive to kill her to prevent her from testifying. In those circumstances, the decision not to cross-examine in the manner now suggested by amicus was a reasonable tactical decision.

[13] There is one other point that needs to be made in relation to this ground of appeal. Defence counsel is now deceased. However, junior counsel who assisted trial counsel, has provided evidence about the relationship between the appellant and counsel. She testified that after the trial, defence counsel told her that in light of the appellant’s testimony at trial he wished he had cross-examined the spouse on the fact that she met with the appellant on several occasions prior to the killing. Amicus argues that this clearly demonstrates that defence counsel recognized that he failed to conduct a competent defence.

[14] We do not agree. Counsel’s comment must be put in context. When the spouse completed her examination-in-chief, defence counsel said he expected that his cross-examination would be brief but asked for a recess to speak to the appellant. The trial judge granted the request. However, the appellant refused to speak to counsel and refused to tell him what he would say when he testified. As it turned out, the appellant, against the advice of his counsel, testified and in his own examination-in-chief[^1] discussed the assault charge. Counsel can hardly be blamed now for failing to cross-examine when the appellant refused to provide him with the necessary instructions.

[15] We would not give effect to this ground of appeal.

CHARGE TO THE JURY ON AFTER-THE-FACT CONDUCT

[16] After killing his son, the appellant fled the house and then lay down on the ground where he was found by the police. After he was arrested, the appellant asked the officers to kill him. The Crown relied upon this evidence as consciousness of guilt. The trial judge instructed the jury that they could take this evidence into account in determining whether the appellant committed the offence charged. Amicus submits that this was an error; that this evidence may have been relevant on the issue of whether the appellant committed the killing but was not relevant as to whether this was a planned and deliberate murder. We agree with amicus.

[17] We are also satisfied, however, that no substantial wrong or miscarriage of justice resulted from this error. First, having given the impugned instruction, the trial judge immediately told the jury that in his opinion this evidence would not assist in determining the appellant’s state of mind, although admittedly he told the jury that issue was for them. More importantly, when he came to deal with planning and deliberation, the trial judge listed, in detail, the evidence upon which the Crown relied to show planning and deliberation. He did not refer to the after-the-fact conduct. We think that given these instructions there is no possibility that the jury relied upon this evidence on the issue of planning and deliberation. Accordingly, we would not give effect to this argument.

CHARGE TO THE JURY ON THE BURDEN OF PROOF

[18] Amicus submits that the trial judge erred in his charge by setting up a credibility contest between the appellant and his spouse about the contents of the threatening telephone call. In his testimony, the appellant denied making the threat. We agree with amicus that the content of this call was important, but we do not agree that the trial judge erred. The trial judge invited the jury to compare the two versions of the call and to ask themselves who they believed and who was the best person to decide whether there was a threat. R. v. W. (D.), [1991] 1 S.C.R. 742 prohibits the trier of fact from treating the standard of proof as a credibility contest but it does not prohibit a trier of fact from assessing the accused’s testimony in light of the whole evidence. Thus, it is open to the trier of fact to assess the credibility of the accused’s evidence by comparing it to the contradictory evidence adduced by the Crown. See R. v. Hull, [2006] O.J. No. 3177 (C.A.). In our view, the impugned instruction was not inconsistent with R. v. W. (D.). In other parts of the charge the trial judge repeatedly instructed the jury on the burden and onus of proof and virtually the last instruction given to the jury was the R. v. W. (D.) instruction. Accordingly, we would also not give effect to this ground of appeal.

DISPOSITION

[19] Accordingly, the appeal from conviction is dismissed.

[20] The appellant also appealed his sentence. Since the appellant received the mandatory minimum penalty for first degree murder, the appeal from sentence for first degree murder is quashed. The appellant has served the sentence for aggravated assault and thus leave to appeal sentence for aggravated assault is refused.

Signed: "M. Rosenberg J.A." "E.E. Gillese J.A." "J. MacFarland J.A."

RELEASED: "MR" October 1, 2007

[^1]: Crown counsel did not cross-examine the appellant.