Court File and Parties

CITATION: R. v. Johnston, 2009 ONCA 255

DATE: 2009-03-23

DOCKET: C49543

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Cronk JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Mark Johnston Appellant

Counsel: Maureen Addie, for the appellant James K. Stewart, for the respondent

Heard and released orally: March 13, 2009

On appeal from the convictions entered on June 9, 2008 and the sentences imposed on July 28, 2008 by Justice Paul Bentley of the Ontario Court of Justice.

ENDORSEMENT

[1] The core issue on appeal is whether a miscarriage of justice occurred in this case due to the ineffective representation of the appellant at trial by his counsel. The appellant argues that his trial counsel failed to advise him of the potential consequences of pleading guilty on June 9, 2008 to various charges including, in particular, the charge of breaching the terms of his conditional sentence, imposed on March 28, 2008. Indeed, the appellant goes further and contends that his lawyers actively misled him by indicating that he would not be sentenced to any further term of incarceration if he pled guilty and had all his outstanding charges dealt with together.

[2] In our view, the appellant’s contention is simply unsustainable on this record. The appellant was no stranger to the criminal justice system. On the contrary, he had a lengthy criminal record. The transcript amply demonstrates that he understood the proceedings in which he was involved, was an active participant in the proceedings involving his guilty pleas both on March 7, 2008 in respect of his original set of offences, and again on June 9, 2008 in respect of the breach by him of his conditional sentence and associated charges. Given his background and experience, it simply strains credulity to suggest that this offender did not fully appreciate that he risked a custodial sentence on conviction for breach of his conditional sentence.

[3] Moreover, on March 7, 2008, the Crown acceded to a conditional sentence although the offences then in question clearly supported a jail term. In so doing, the Crown made it abundantly clear on the record that if the appellant breached the conditional sentence imposed, the Crown would seek a significant jail term. The appellant in fact breached the conditional sentence less than three weeks later.

[4] In addition, in response to the allegation of ineffective assistance of counsel, the appellant’s junior trial counsel produced a memorandum to file dated May 2, 2008 – that is, dating from well before the date on which the appellant entered his guilty plea to the breach charges on June 9, 2008 – which confirmed that the appellant was clearly told on that date that “jail time was likely going to be involved” and that the Crown was “going to ask [that] he be thrown back in jail” on sentencing for his fresh offences. There is absolutely no evidence to support the appellant’s late-breaking assertion on cross-examination in this proceeding that this memorandum was an after-the-fact fabrication by counsel.

[5] We accept that trial counsels’ practice and file management measures in this case may well have been deficient. Indeed, counsel failed to attend a potentially important judicial pre-trial conference. We also agree that trial counsels’ communications with the appellant may have been less frequent and less comprehensive than was prudent in the circumstances.

[6] However, we are simply not persuaded that there is any justification for the appellant’s claim that when deciding to enter guilty pleas on June 9, 2008, he did not appreciate that he ran the risk of receiving a custodial sentence. On the contrary, we are satisfied that the appellant appreciated that he bore this risk for the breach of his conditional sentence. The evidence falls far short of supporting the appellant’s bald assertion that he was misled by his lawyers in this regard.

[7] Accordingly, we would not give effect to this ground of appeal.

[8] The appellant also argues that the facts relied on by the Crown at trial did not support a conviction on the charge of possession of property knowing that it was obtained by the commission of crime. On this record, there is no basis on which to find that the appellant converted the cheques at issue from one use to another. The authority relied on by the Crown does not apply and accordingly, the conviction on this charge cannot stand.

[9] We note that during the course of oral argument before this court, the appellant’s counsel wisely abandoned the appellant’s sentence appeal given that the Crown had served a ‘Hill’ notice that it would seek to change the custodial portion of the appellant’s sentence by including in it the community service portion of the conditional sentence. The ‘Hill’ notice became ineffective when the appellant abandoned his sentence appeal. This decision by counsel had the practical effect of saving the appellant an additional five and one-half months in custody as we would have given effect to the Crown’s request.

[10] Accordingly, the appeal is allowed in part by setting aside the possession of property obtained by crime conviction, above described. In all other respects, the conviction appeal is dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“E.A. Cronk J.A.”