R. v. Broomfield, 2010 ONCA 558

CITATION: R. v. Broomfield, 2010 ONCA 558

DATE: 20100820

DOCKET: M39026 (C52434)

COURT OF APPEAL FOR ONTARIO

Weiler J.A (in-chambers)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Tamara Broomfield

Appellant (Moving Party)

James Lockyer and Grace David, for the moving party

Andrew Cappell, for the responding party

Heard: August 19, 2010

On appeal from the conviction entered on April 1, 2009 and the sentence imposed on July 8, 2010 by Justice Tamarin Dunnet of the Superior Court of Justice, sitting without a jury, and on a motion for bail pending appeal.

Weiler J.A. (in-chambers):

[1] The applicant applies for bail pending her appeal. She was convicted of aggravated assault endangering life, by giving her son a potentially lethal dose of cocaine; administering cocaine to him over a 14 month period; assault causing bodily harm, resulting in multiple rib fractures; and failing to provide necessaries of life by failing to seek medical assistance for his fractured arm. The applicant was sentenced on July 8, 2010 to a period of five years and ten months imprisonment in addition to credit for 14 months pre-trial custody.

[2] The Crown concedes that the appeal is not frivolous, and does not dispute that the applicant will surrender herself into custody in accordance with the terms of any judicial interim release order made pending appeal. In addition, the applicant, a 26 year old first offender, submits that she has employment available to her if she is released pending her appeal.

[3] The issue in this case is whether the applicant has established that her detention is not necessary in the public interest. The public interest relates to the need to maintain confidence in the administration of justice by enforcing the judgment balanced against the need to review the judgment to ensure that no person has been wrongly or unfairly convicted. Appellate courts have recognized that, where the grounds of appeal are strong and there is serious concern about the accuracy of the verdict, the public interest may favour release notwithstanding the seriousness of the offences involved: See R. v. Baltovich (2000), 2000 CanLII 5680 (ON CA), 144 C.C.C. (3d) 233 (Ont. C.A.) at para. 20. As a result, the strength of the grounds of appeal is central to my decision whether or not to grant the application.

[4] Based on the material before me, including the comprehensive reasons of the trial judge for her verdict as well as on the motion to declare a mistrial, the grounds of appeal appear weak. The overarching ground of appeal is that the appellant’s trial counsel, Mr. Kirichenko, breached his duty of loyalty to his client and rendered ineffective assistance to her resulting in a miscarriage of justice.

[5] Insofar as counsel’s duty of loyalty is concerned, the applicant testified on the mistrial application that in December of 2008, she gave him $1,000 in cash as a means of obtaining a meeting with him. Mr. Kirichenko, who was on a legal aid certificate at the time and therefore prohibited from receiving a private retainer from the applicant, admits receiving money from her, says it was $300 and that it was a Christmas present.

[6] Three days before the applicant’s trial was to commence, the Law Society of Upper Canada (LSUC) held a disciplinary hearing into allegations that Mr. Kirichenko had failed to keep proper accounts and failed to respond to demands and spot audits from the LSUC. Mr. Kirichenko conceded the allegations but requested an indefinite postponement of the penalty including a 30 day suspension of his license to practice. The Chair refused the request for an indefinite postponement but postponed the commencement of the suspension until February 23, 2009 to accommodate the appellant’s trial. In the event it was necessary, the Chair advised Mr. Kirichenko he could request a further extension of time in writing. Mr. Kirichenko did not request an extension of time and further postponement of his suspension. Thus, he began serving his suspension on February 23, 2009.

[7] The evidence and submissions in the applicant’s trial were completed on January 29, 2009 and the case was adjourned for judgment to March 25, 2009. The day before judgment was to be handed down, Mr. Kirichenko telephoned the applicant to say that the matter was going to be adjourned for one week. He told her that he could not appear in court with her when the matter was adjourned because he was ill. The following week, when judgment was handed down, on April 1, 2009, he sat beside her ungowned in the courtroom. He lied and said that he had forgotten his robes at home. In a hand written note to Ms. Phillips of the LSUC before the hearing, Mr. Kirichenko wrote, “Can I go get judgment tomorrow? It was long trial; client with no record faces long term if convicted. Also press has been all over the case. I would like to avoid explaining being ungowned. If there is conviction it will be adjourned.”

[8] The applicant submits that Mr. Kirichenko’s conduct fell well below the duty of loyalty required of a lawyer outlined by Binnie J. in R. v. Neil, 2002 SCC 70, [2002] 168 C.C.C. (3d) 321 and that, as a result, she is entitled to a new trial. She submits that she was entitled to be informed of Mr. Kirichenko’s circumstances because that information could have affected her decision as to whether to continue with him as her counsel. In addition, Mr. Kirichenko apparently did not comply with the LSUC’s requirement that he cease to practice for one month. He continued to provide the applicant with legal advice and spoke with her probation officer assisting in the preparation of the pre-sentence report. Had the applicant wished to ask Mr. Kirichenko to have the court reopen the case and to reconsider its verdict, the applicant submits Mr. Kirichenko would not have been in a position to do so as he was under suspension during this time. I note, however, that after March 23, he would have served his suspension and been in a position to bring such an application as the sentence was not pronounced until July 8, 2010. No such application was made.

[9] While Mr. Kirichenko’s conduct may well be the subject of further discipline proceedings before the LSUC, the LSUC allowed him to continue to act and postponed his suspension so that he could act for the applicant. It did not require him to advise the applicant of his pending suspension. In doing so, it is apparent that the LSUC did not see a conflict of interest, a breach of Mr. Kirichenko’s duty of loyalty to his client, or any danger to her interests. Insofar as the receipt of money in December is concerned, Mr. Kirichenko may have wrongly accepted money from the applicant and, in doing so, put his self-interest first, but the acceptance of the money did not create a conflict in the proceeding brought by the Crown.

[10] The applicant also alleges that Mr. Kirichenko’s upcoming suspension improperly influenced his conduct of the appellant’s trial and caused him to cut corners in order to complete the trial as soon as possible.

[11] Dunnet J. dealt with these arguments in her comprehensive reasons on the motion for a mistrial. At this stage, I am not satisfied that counsel has shown any error in principle in the manner in which she exercised her discretion in refusing to grant a mistrial and in rejecting the submission that Mr. Kirichenko’s conduct led to a miscarriage of justice. As a result, those reasons are entitled to deference.

[12] Some further brief comment is warranted concerning the applicant’s submissions that Mr. Kirichenko was obliged to raise the prior misconduct of two expert witnesses in matters that were unrelated to this proceeding with a view to undermining their credibility generally. I note that the evidence of the one expert, Dr. Mian, relates to the conviction for assault causing bodily harm due to rib fractures but does not touch the trial judge’s findings concerning the appellant’s failure to seek medical attention for her son’s arm which led to her conviction for failing to provide the necessaries of life nor does it relate to her conviction for aggravated assault by endangering life by administering a noxious substance.

[13] The applicant’s challenge to the evidence of Dr. Koren, the hair follicle expert, to the effect that M. had been given cocaine over a 14 month period, loses a considerable amount of its thrust due to the fact that during the preliminary inquiry Mr. Gareri, the Manager of the Division of Clinical Pharmacology and Toxicology in the Motherisk Laboratory, gave the same evidence. I do not take the applicant’s submission to go so far as to suggest that the evidence of anyone who works at the Motherisk Laboratory is not credible because of some past misconduct on the part of its owner Dr. Koren.

[14] The extremely serious nature of the conviction in this case, endangering the life of a two year old child by the administration of a potentially lethal dose of cocaine with the tragic consequence that he is now severely disabled, coupled with what appear at this time to be weak grounds of appeal, lead me to conclude that the need for enforceability of the judgment must be given precedence at this time. The appellant has failed to discharge the onus on her respecting the public interest criterion.

[15] I also observe that, if properly processed, the appellant’s continued incarceration would not render her appeal nugatory. The trial was not unduly lengthy. The applicant’s counsel has ordered the trial transcripts. Priority should be given to their preparation and to the scheduling of this appeal in as expeditious a manner as is possible.

[16] For the reasons given the application for bail pending appeal is dismissed.

“K.M. Weiler J.A.”