R. v. Qiu, 2010 ONCA 736

CITATION: R. v. Qiu, 2010 ONCA 736

DATE: 2010-11-03

DOCKET: C51403

COURT OF APPEAL FOR ONTARIO

Feldman, Lang and LaForme JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Xiao Dan Qiu

Appellant

Counsel: Edward F. Hung, for the appellant Rick Visca, for the respondent

Heard: September 21, 2010

On appeal from the conviction entered on July 10, 2009 and the sentence imposed on December 15, 2009 by Justice Anne-Marie Hourigan of the Ontario Court of Justice.

Lang J.A.:

INTRODUCTION

[1] The appellant appeals from her convictions for possession and trafficking arising from the operation of a marijuana cultivation operation that the police discovered in the basement of her house when responding to a 911 call. The appellant’s position was that she had rented the basement to a tenant and had no knowledge that he was using it to cultivate marijuana. In support of this position, appellant’s counsel filed as exhibits a purported tenancy agreement with a Mr. Feng and a Notice of Hearing of eviction. The appellant did not testify.

[2] The appellant’s primary ground of appeal is that her trial counsel (not appellate counsel) provided her with ineffective assistance. She alleges that the “decision [that she not] testify was in effect... made by counsel and not by the appellant, and thus a miscarriage of justice resulted therefrom.” In the alternative, the appellant argues that trial counsel’s advice not to testify amounted to incompetence, as did his failure to call certain evidence.

BACKGROUND

[3] The appellant’s contentions on appeal must be considered in the context of the Crown’s case at the time of trial. At trial, the Crown led evidence that the police located the marijuana operation when they were attending at the appellant’s house in the early hours of December 31, 2008 in response to a 911 call placed by the appellant’s seventeen-year-old daughter. The daughter, who was very frightened, reported that someone was attempting to force entry into the house. At some point during the call, the daughter gave the telephone to the appellant. The appellant spoke little English. The call was terminated.

[4] The police proceeded to the house. They observed shattered glass on the front porch, a broken window in the front door and a damaged doorframe. As soon as they entered, they noted an overwhelming odour of marijuana that seemed to emanate from the locked basement. The door to the basement was located in the main floor hallway. After securing the main and upper floors of the house, the police asked the appellant for a key to the basement. The appellant produced the key from the top of her refrigerator and unlocked the basement door. Upon entry the police found that the basement contained recently harvested marijuana and associated paraphernalia such as foil over the windows and doors, timers, hydroponic equipment, lights, a fan, pots of soil, marijuana stalks and leaves in numerous garbage bags and packaged marijuana. There was no indication of occupation of the basement by a residential tenant.

[5] Counsel defended on the basis of reasonable doubt pointing to the evidence of the tenancy agreement and the eviction notice as well as the absence of a direct connection between the appellant and the basement operation. However, the trial judge convicted the appellant concluding that she had knowledge and control of and was linked to the production of the marijuana for the purposes of trafficking. She cited the appellant’s access to the basement, the absence of “signs that the basement was occupied by persons”, and the overwhelming odour of marijuana.

ANALYSIS

Legal Principles

[6] The applicable legal principles are not in dispute. An accused represented by counsel is entitled to effective representation. An appeal court will receive fresh evidence concerning an allegation of ineffective assistance of counsel under s. 683(1) of the Criminal Code. If an appellant establishes ineffective representation that resulted in a miscarriage of justice, his or her conviction will be quashed. See R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. Archer (2005) 2005 CanLII 36444 (ON CA), O.J. No. 4348 (Ont. C.A.) at 118.

[7] To succeed in a claim of ineffective assistance of counsel, an appellant must establish the three components described by Doherty J.A. at paras. 119 and 120 of Archer:

First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.).

Third, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64.

[8] In G.D.B., at p. 298, Major J. suggested that a court should first decide whether the alleged incompetence of counsel resulted in a miscarriage of justice because, in the absence of a miscarriage of justice, it would be unnecessary to consider the other two elements that deal with counsel’s performance.

I Alleged failure to advise

[9] In this case, the Crown concedes that if trial counsel failed to advise the appellant of her right to testify, or effectively made the decision for her, the appellant would have suffered a miscarriage of justice. He refers to para. 139 of Archer:

If the appellant can show that it was trial counsel and not the appellant who decided that the appellant would not testify, and that the appellant would have testified had he understood that it was his decision, it seems to me that it must be accepted that his testimony could have affected the result, thereby establishing that a miscarriage of justice occurred: see R. v. Moore (2002), 2002 SKCA 30, 163 C.C.C. (3d) 343 at 371 (Sask. C.A.). The crucial question becomes - who made the decision?

[10] In this case, as in Archer, the inquiry focused on the question of whether the appellant has established that trial counsel failed to effectively advise her of her right to testify.

[11] The appellant’s allegation relies largely on attacking the competence and reliability of the interpreter provided by trial counsel. She argues that the interpreter did not properly, accurately or fully translate between English and Mandarin. She claims that the interpreter had a strong Cantonese accent so that she “could understand some but not all of his translations” and she was unsure that he understood her completely. She stated that she had only limited schooling in China and did not understand that evidence had to come from witnesses. Instead, she understood from the interpreter that her lawyer would speak on her behalf at the trial. Further, she claims trial counsel never spoke to her about testifying at trial and if he had done so she would have exercised her right to testify.

[12] Trial counsel filed affidavit evidence that the interpreter about whom the appellant complains was accredited by the court as a Mandarin/Cantonese interpreter as well as by the Immigration and Refugee Board as a Mandarin interpreter. Trial counsel had used the interpreter’s services for Mandarin and Cantonese clients since 2002 without any complaint.

[13] Trial counsel retained the interpreter for his meetings with the appellant throughout the year preceding trial. During the year, there were five pre-trial court appearances. Trial counsel stated that neither the appellant nor her former husband, who was present at certain meetings, made any complaint or raised any difficulty about the interpreter’s work. Furthermore, trial counsel spoke with the appellant’s daughter in English when preparing her for trial. At no time did the daughter communicate any complaints or concerns that her mother had concerning the interpreter’s services. Moreover, the appellant appeared to comprehend the interpreter fully since she produced to her lawyer the documentary evidence that he requested through the interpreter during their meetings.

[14] While the appellant denied any discussion about whether she should exercise her right to testify, trial counsel gave specifics about the discussion he says took place and the hurdles he told the appellant she would face in cross-examination. He attested to his assessment of the Crown’s case and his concern that any benefits from the appellant’s testimony would be significantly outweighed by its potential prejudice. He said that the appellant responded to his advice that she not testify in Mandarin. Her response was translated by the interpreter: “better if I don’t”.

[15] I assess the appellant’s evidence cognizant of her motive to conceive or reconstruct a scenario in her mind that would enable her to secure a retrial and mindful not to employ hindsight in assessing the discussion between counsel and client and any decision taken at the time of trial. I approach trial counsel’s evidence with the presumption that he appreciated the basic principle that an accused has the right to testify and that the decision whether to do so must be made by the accused and not by counsel.

[16] Applying this approach, the appellant has failed to establish the material facts necessary to support her allegation of ineffective assistance of counsel on the balance of probabilities. Her evidence is not consistent with the absence of any complaint about the interpreter’s translation, her compliance with counsel’s production requests made through the interpreter, her failure to produce any detail concerning the purported tenant, and counsel’s knowledge and appreciation of his obligation to canvass the appellant’s right to testify.

[17] In coming to this conclusion, I reject the appellant’s argument that the respondent had an onus to file an affidavit by the interpreter. Trial counsel’s critical evidence was that he had used this accredited interpreter without complaint for years and he gave evidence of a specific discussion with the appellant about her right to testify and her response, “better if I don’t”. The appellant did not shake this critical evidence on cross-examination. The interpreter was equally available to her if she considered his evidence would benefit her position.

[18] Accordingly, I would not give effect to this ground of appeal.

II Other allegations of ineffective assistance

[19] I turn to the appellant’s alternate allegation of ineffective assistance of counsel based on trial counsel’s advice that she not testify at trial.

[20] It is the appellant’s position that the Crown’s case was so compelling that she either had to testify or face inevitable conviction. In those circumstances, she argues that trial counsel displayed incompetence in advising her not to testify.

[21] Trial counsel testified that he advised the appellant against testifying at trial for a number of reasons. First, in his view, the appellant’s best opportunity for an acquittal was based on raising a reasonable doubt about the Crown’s largely circumstantial case. Trial counsel intended to do so by relying on the absence of any expert witness to establish possession for the purpose of trafficking. He also intended to disassociate the appellant from the operation by pointing to the absence of any evidence that the appellant was engaged in the cultivation of the marijuana, the evidence of a fingerprint on a marijuana grow chart that did not belong to the appellant, and the evidence of tenant occupation of the basement through the rental agreement and subsequent eviction notice.

[22] In addition, trial counsel was concerned that the appellant’s evidence would serve overall to improve the Crown’s case. Those concerns arose from three important factors. First, the appellant was unable to provide any particulars about the purported tenant. Indeed, even in her fresh evidence on appeal the appellant has not offered any particulars about the alleged tenant. Since the gist of the appellant’s defence was that the marijuana operation belonged to her tenant and not to her it was important, if she decided to testify, that she be in a position to provide some detail to bring the purported tenant to life.

[23] Second, if the appellant testified, she would be questioned about her means of maintaining the property. Her bank statements showed very significant amounts of money flowed into her bank account over the relevant time. The appellant’s explanation to her counsel, which was that friends gave her money that was later repaid by her brother, was improbable and was not substantiated by the documentary evidence or the evidence of other proposed witnesses. The absence of a solid explanation about how she could maintain the property with her limited level of income could lead to an inference that she did so through the marijuana operation, the proceeds of which were deposited in her account.

[24] Finally, the appellant admitted to trial counsel that she had committed fraud in obtaining the mortgage needed to purchase the property. She did so by providing the mortgagee with forged documents that purported to establish that she was earning $65,000 in employment income. In the trial lawyer’s view, this fraud may have been elicited by the Crown in evidence and would have been admissible as relevant to the appellant’s motive in buying the house and maintaining payments on the mortgage. Admission of this evidence could lead to the inference that the appellant bought the property for the purpose for which it was used; namely, as a marijuana cultivation operation.

[25] Even if trial counsel erred in his view of the extent of the prejudice posed by the mortgage fraud evidence, including its effect on a possible subsequent fraud charge - and the record is by no means clear that he did so - any such error did not affect either trial counsel’s recommendation or the appellant’s decision not to testify. In any event, the mortgage fraud was but one of many concerns trial counsel had in recommending that the appellant not testify and her decision that it was “better” if she did not do so. That decision made sense.

[26] The appellant also argues that she had other essential evidence that trial counsel ignored in advising her not to testify. For example, the appellant says that trial counsel should have taken into account the importance of establishing that she was absent from the house for all but the last six weeks before the incident as well as for the entire week immediately preceding the discovery of the operation. The appellant says she also would have given evidence that the only time she noticed a distinctive odour (that she could not identify) was the night before the 911 call. However, evidence about the appellant’s absences from the house would have been of marginal benefit given that the cultivation operation appeared to have been in existence for some time, including for the several weeks when the appellant acknowledged she was residing in the house.

[27] The appellant also says that trial counsel failed to appreciate, among other things, that, if called as a witness, she would have testified that she asked her daughter to place the 911 call and only terminated it because she thought the dispatcher had already broken the connection. The appellant argues that her evidence that she initiated the 911 call would have suggested that she did not know about the operation in the basement. Trial counsel denies that this information was given to him before trial. In any event, the appellant’s explanation is belied by the emergency circumstances in which the 911 call was made. When someone was breaking windows with the apparent intent of entering the house at three o’clock in the morning the reasonable inference is that the appellant’s primary concern would have been the safety of herself and her young daughter and not the contents of the locked basement.

[28] In my view, the appellant’s proposed additional evidence, particularly when considered in light of the case against her, and when balanced against the negative impact of her other evidence, would not have led competent counsel to advise the appellant to testify at trial. Accordingly, the appellant has failed to establish that counsel’s advice amounted to ineffective assistance of counsel.

[29] For similar reasons, I do not accept the appellant’s argument that trial counsel’s decision not to call the daughter as a witness in any way demonstrated a lack of competence. Counsel explained his similar concerns about the daughter’s proposed evidence.

[30] Finally, I give no weight to the appellant’s argument that trial counsel failed to call other pertinent evidence, such as the airline ticket demonstrating her travels. This evidence really amounts to the same issue about whether trial counsel should have advised the appellant to testify. Similarly, the appellant argues trial counsel was incompetent in filing materials evidencing her ownership of the home. However, various pieces of evidence pointed to the appellant’s ownership of the home, including her admission of this fact to the police, her presence in the home and the purported tenancy agreement and eviction notice in which she was listed as the owner and which was essential to her defence.

[31] That said, I conclude by observing that the argument in this case would have been substantially narrowed had the trial counsel followed the practice he implemented in other cases of obtaining a signed (and in this case interpreted) direction from the appellant that she chose not to testify.

[32] For these reasons, I would dismiss the appeal. In doing so, I observe that the appellant did not pursue her appeal regarding sentence.

“S.E. Lang J.A.”

“I agree K. Feldman J.A.”

“I agree H.S. LaForme J.A.”

RELEASED: November 3, 2010

“KF”