Court of Appeal for Ontario

CITATION: R. v. John, 2012 ONCA 114

DATE: 20120217

DOCKET: C49362

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kervin John

Appellant

Counsel:

Kervin John, appearing in person

Heather Pringle, amicus curiae

Jamie Klukach, for the respondent

Heard and released orally: February 8, 2012

On appeal from the convictions entered by Justice Deena Baltman of the Superior Court of Justice, sitting with a jury, on June 3, 2008 and the sentences imposed by Justice Baltman on September 8, 2008.

ENDORSEMENT

(1) Conviction Appeal

[1] The appellant argues that his trial counsel’s assistance was ineffective, resulting in a miscarriage of justice. On this basis, he says, his convictions for breaking and entering and theft over $5,000 (motor vehicle) should be set aside and acquittals entered.

[2] Extensive fresh evidence was tendered on appeal in support of the appellant’s ineffective assistance claim. The fresh evidence, which we have reviewed in detail, wholly fails to displace the presumption of trial counsel’s competency that applies by operation of law. Quite the opposite. The record in this case, including the fresh evidence, reveals trial counsel’s high degree of effort and professionalism in advancing the appellant’s defence and interests in accordance with his express and repeated instructions, notwithstanding trial counsel’s retainer only a short time prior to this jury trial.

[3] On behalf of the appellant, amicus attacks trial counsel’s closing submission concerning the theft of the car and its contents. The Crown had a strong circumstantial case on the issue of the car theft. DNA analysis revealed the appellant’s blood in the car, his fingerprints on the car and his DNA on objects in the car. This evidence clearly linked the appellant to the stolen car. In addition, there was DNA evidence linking the appellant to the scene of the crime. Moreover, the appellant steadfastly refused to provide trial counsel with any explanation for his presence in or possession of the admittedly stolen car or for his whereabouts at the critical times in question, thus preventing trial counsel from advancing any explanation on his behalf before the jury. The appellant elected not to testify. In all these circumstances, there was an ample evidentiary basis for the jury’s verdict of guilty on the theft over charge.

[4] We conclude, therefore, that there is no basis on this record to hold that, by reason of trial counsel’s conduct, trial fairness was impaired in this case or the jury’s verdicts are unreliable. The appellant has failed to demonstrate any prejudice arising from the acts or omissions of his trial counsel.

[5] The conviction appeal is dismissed.

(2) Sentence Appeal

[6] The appellant appeals his sentences of five years’ imprisonment for breaking and entering and two years’ imprisonment, concurrent, for theft of the car, after credit for pre-sentence custody, on the basis that his total sentence was too harsh.

[7] We disagree. On the basis of the appellant’s extensive criminal record, including his record for prior similar offences, and the evidence of his virtually uninterrupted pattern of criminal behaviour since his return to Canada, the sentence imposed was fully justified.

[8] Leave to appeal sentence is granted and the sentence appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”