Court of Appeal for Ontario

CITATION: R. v. Huynh, 2010 ONCA 374

DATE: 20100521

DOCKET: C45272

Moldaver, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luong Van Huynh

Appellant

Counsel:

Russell Silverstein, for the appellant

Kimberley Crosbie, for the respondent

Heard and released orally: May 13, 2010

On appeal from the conviction entered by Justice Bruce G. Thomas of the Ontario Court of Justice dated May 12, 2004.

ENDORSEMENT

[1] The appellant was convicted of one count of robbery. The robbery involved a home invasion, theft of money and drugs, and the use of a firearm, none of which were disputed at trial. The sole issue was whether the appellant’s participation in the robbery was criminally culpable. The appellant has served his sentence and is now appealing only his conviction.

[2] His main ground of appeal is that he did not receive effective assistance from his trial counsel. The fresh evidence tendered in support of this ground of appeal is not contested, only its impact. We will address this ground last.

[3] The appellant’s second ground of appeal is that the trial judge erred in his assessment of three Crown witnesses. We reject this ground of appeal.

[4] The trial judge was clearly aware that the witnesses - who were all involved in the home invasion - were of unsavoury character and he noted their criminal records. He assessed their evidence with due regard for these matters, as well as their role in the offences and their motives against the appellant for abandoning them at the scene. We see no error in his analysis.

[5] As to the ineffective assistance of trial counsel, we again see no merit to this ground of appeal. The test that the appellant must meet is to demonstrate first, that trial counsel’s acts or omissions constituted incompetence, and second, that a miscarriage of justice resulted. Appellate courts will generally first decide whether a miscarriage of justice occurred because unless it has, there is no need to pass judgment on the competence of trial counsel. In this regard, the appellant has not met his burden in respect of either.

[6] Even if the fresh evidence had been tendered at trial, it would not have altered the verdict or give rise to a miscarriage of justice. In the end, the trial judge found the appellant’s evidence to be incredible for many reasons. In the context of the whole of this case, the fresh evidence - that he was at a doctor’s office earlier in the day - would not have transformed the appellant’s incredible story into a believable one. Nor would it have raised a reasonable doubt about the strength of the evidence against him, especially since he could have been at the doctor’s office and still attended the early afternoon meeting at the lead conspirator’s home.

[7] When the evidence - including this evidence - is assessed in its entirety, the conclusion still remains that the appellant knew that he was participating in the robbery that evening and fulfilled his role in it. Whether there was other evidence corroborating his testimony that he was at his doctor’s office around the time he is said to have attended a planning meeting - some 13 hours before the offence was committed - would not have changed the ultimate result.

[8] Finally, the fresh evidence leaves us far from persuaded that the appellant’s trial counsel was incompetent. In so concluding, we find counsel’s evidence far more persuasive than the evidence given by the appellant. We see no basis for disbelieving her account of the events that occurred once the appellant told her of his visit to the doctor’s office on the day of the robbery. In particular, we accept counsel’s evidence that the appellant refused her offer to subpoena the doctor and adjourn the case and that he instructed her instead to carry on. In the face of those instructions and given the tangential worth of the doctor’s evidence, counsel cannot be faulted for choosing to carry on.

[9] For these reasons, the appeal is dismissed.

“M.J. Moldaver J.A.”

“H.S. LaForme J.A.”

“Paul Rouleau J.A.”