R. v. Silva, 2007 ONCA 839

CITATION: R. v. Silva, 2007 ONCA 839

DATE: 20071204

DOCKET: C45467

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ARTUR SILVA

Appellant

Jacob Stilman for the appellant

Amy Alyea for the respondent

Heard and orally released: November 14, 2007

On appeal from the conviction entered by Justice H. Chisvin of the Ontario Court of Justice, dated March 29, 2006 and the sentence imposed on May 3, 2006.

ENDORSEMENT

[1] The appellant alleges that he did not receive the effective assistance of counsel at trial. He contends that counsel advised him to testify, although counsel knew that his evidence amounted to a virtual confession to the offence of dangerous driving. Allegations of ineffective assistance of counsel must be examined on a case-by-case basis, especially where they involve the exercise of judgment on questions like whether to advise a client to testify.

[2] In the circumstances of this case, we cannot say that the decision to advise the appellant to testify reflects incompetence. Trial counsel reasonably concluded that the Crown’s case was formidable, if not overwhelming, and presented a serious case of dangerous driving against the appellant. Counsel’s advice to his client that he should testify, despite the potential incriminatory nature of some of his client’s evidence was, in our view, no doubt, a difficult but a reasonable exercise of counsel’s judgment.

[3] We do not agree that counsel’s advice was predicated on a misunderstanding of the law of dangerous driving. We think it is fair to say that counsel hoped to demonstrate through his client’s evidence that while he was guilty of civil negligence, his inadvertence fell short of the “marked departure” necessary for a criminal conviction. This was perhaps a faint hope given the nature of the appellant’s evidence, but it is the only one that he had in the circumstances.

[4] The marked departure standard is recognized as entirely fact dependent and as a standard that is difficult to apply. Different triers of fact will come to different conclusions. Counsel hoped that this trier of fact would take a generous view of that standard where as here the accused was a hardworking family man with no criminal or driving record. In addition, counsel was faced with the reality that but for his client’s testimony, the nature of the dangerous driving that the trial judge could find may well have been much worse than the nature of the dangerous driving ultimately found by the trial judge once he had the benefit of the appellant’s evidence.

[5] We would dismiss the appeal from conviction.

[6] We cannot say that the sentence is unfit. We have only a limited power to interfere on sentence and cannot impose the sentence that we think appropriate. While it may be that the appellant’s sentence could have been different, we see no basis upon which to interfere with the sentence. The sentence appeal must also be dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“Robert P. Armstrong J.A.”