Court of Appeal for Ontario
Citation: R. v. Khaja, 2010 ONCA 246
Date: 20100406
Docket: C49785
Before: Doherty, Moldaver and Epstein JJ.A.
Between
Her Majesty the Queen
Respondent
and
Nizamuddin Khaja
Appellant
Counsel:
Delmar Doucette, for the appellant
Greg Skerkowski, for the respondent
Heard and released orally: March 30, 2010
On appeal from the conviction entered on May 3, 2006 and the sentence imposed on May 3, 2006 by Justice H. Chisvin of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant appeals from his conviction for fraud following a plea of guilty on the second day of trial. The appellant submits that he did not receive effective assistance of counsel. This incompetence, he argues, manifested itself early in the trial such that he found himself in a “no-win” situation. He had no choice but to plead guilty.
[2] The facts supporting the guilty plea can be briefly summarized as follows.
[3] The appellant, posing as an employee of Barclay’s Bank, contacted a sales representative at Landmark Leasing for the purpose of leasing two vehicles for the company. Negotiations took place electronically and resulted in the representative leaving two cars at a hotel for pick up. When the representative became suspicious that Landmark Leasing had been defrauded, he arranged to lease a third vehicle. The appellant was arrested when he arrived at the designated place to pick up this third car.
[4] The police investigated the area and seeing a car with a suspicious license plate, looked inside and found articles that implicated the appellant.
[5] The appellant’s argument of ineffective assistance of counsel is based on three aspects of the proceedings:
Failure to adduce evidence in the s. 8 voir dire involving the search of the car to establish the appellant’s reasonable expectation of privacy.
Failure to review disclosure prior to trial or to seek an adjournment in order to be prepared to deal with the disclosure.
Failure to provide proper advice for the purposes of the guilty plea.
[6] This appeal must fail as the appellant’s arguments do not meet the high threshold for establishing a claim of ineffective assistance of counsel that requires the appellant to establish first, the material facts upon which the incompetence is based; second, that the assistance counsel provided was ineffective on a test of reasonableness against a strong presumption that counsel’s conduct was reasonably competent; and third, that the ineffective assistance resulted in a miscarriage of justice.
[7] Starting logically with the third test, the appellant faces the hurdle of overcoming his guilty plea. Counsel for the appellant submits that trial counsel’s failure to adduce evidence in the voir dire to establish a privacy interest in the car and to respond properly to Crown disclosure put the appellant in a position early in the trial were he felt defeated. The plea was therefore not voluntary.
[8] Further, the way in which it was taken and what the appellant said and did not say suggested that the plea was equivocal.
[9] First, the appellant’s argument fails on the prejudice aspect of the ineffective assistance of counsel test. Even with evidence that the items in the car belonged to the appellant, it is highly unlikely that he would have been able to establish a privacy interest.
[10] Second, there is nothing in the record to support a finding that counsel was not fully prepared when the trial was started.
[11] Further, we are satisfied that even if a case could be made out in respect of the allegations of ineffective assistance of counsel, there was no miscarriage of justice. In his signed guilty plea instructions, the appellant attested to the fact that he was pleading guilty voluntarily and free from coercion. The plea was unequivocal at the time he made it. A month later when he was sentenced, the appellant raised no issue about his plea. In fact, he expressed remorse. The mere fact that the appellant was not prepared to acknowledge his guilt in his written instructions does not, given what was said in court, impact on the unequivocal nature of his plea. Moreover, to date there is not a hint of any defence beyond a bald assertion of innocence.
[12] No argument was made nor could one be made on this record that the appellant was not informed in respect of the nature of the allegations against him, the effect of his plea and the consequences of it. What the record demonstrates is that the appellant, who is no stranger to the criminal justice system, entered a voluntary, unequivocal plea to the charge knowing full well the effect and consequences of that plea.
[13] Finally, we note that the case against the appellant was overwhelming. In addition to his presence at the agreed-upon pick up location for the third car, the Crown relied on evidence including that of the appellant’s sister-in-law that the appellant let his family use one of the stolen cars that two witnesses identified the appellant’s voice as the person who negotiated the leases and that the e-mails in which the fake leases were negotiated were sent from a computer in the home where the appellant lived.
[14] The appeal is therefore dismissed.
“Doherty J.A.”
“M. J. Moldaver J.A.”
“G. Epstein J.A.”