Court of Appeal for Ontario

Citation: R. v. Desbiens, 2012 ONCA 744

Date: 2012-11-05

Docket: C53357

Before: Goudge, Rouleau and Watt JJ.A.

Between:

Her Majesty the Queen Respondent

and

Robert Desbiens Appellant

Counsel: Breese Davies, for the appellant Riun Shandler, for the respondent

Heard: October 25, 2012

On appeal from the sentence imposed on May 14, 2010 by Justice Donald Downie of the Ontario Court of Justice, sitting without a jury.

By the Court:

[1] On May 14, 2010, the appellant pleaded not guilty to robbery with a firearm, but guilty to simple robbery. The trial judge accepted a joint submission of 30 months in prison with no credit for pre-trial custody.

[2] The appellant has appealed his sentence, arguing ineffective assistance of his lawyer during the sentencing process. At the close of argument we dismissed the appeal with reasons to follow.

[3] These are those reasons.

[4] The appellant was arrested on March 25, 2010, for robbing a convenience store using a BB gun. He was charged with use of a firearm in committing robbery, which carries a minimum sentence of four years.

[5] At the time of his arrest, the appellant was 36 years old and living with his wife and two children. He had a criminal record of driving with over 80 mg of alcohol, assault, uttering threats, theft under $5000, possession of break-in instruments and mischief.

[6] The appellant had been on anti-psychotic and anti-anxiety medication for ten years. He was also addicted to Oxycontin and Percocet. On his arrest, he was immediately denied all medication until March 31, when some, but not all of his anti-psychotic and anti-anxiety medication was restored, and then only in partial amounts. As a result, he was in constant severe physical pain and endured what he described as horrendous emotional suffering. He also experienced withdrawal symptoms from the drugs to which he was addicted.

[7] He retained as counsel the lawyer who had acted for him on previous occasions over the preceding three and a half years. On April 7, counsel reviewed with him the Crown’s pre-trial screening form which contained a resolution offer of a guilty plea to robbery and 15 months in jail, less credit for pre-trial custody.

[8] The appellant says that he instructed counsel to immediately accept this offer, and then make a bail application to get the appellant released from custody.

[9] Counsel says that he advised the appellant to accept the offer, but that the appellant was fixated on getting bail. He insisted that a bail application be made first, so that he could be released. Counsel concluded this was so he could get the drugs he so badly needed. Counsel says this was consistent with instructions he had received from the appellant in previous cases.

[10] On April 12, a bail hearing was scheduled for April 15. On April 13, counsel received a revised pre-trial screening form withdrawing the first offer and proposing a four-year sentence on the basis that a BB gun is a firearm. Counsel advised the appellant of this new Crown position.

[11] Thereafter, following discussions between counsel and the Deputy Crown Attorney, and on written instructions from the appellant, it was agreed that the appellant would plead guilty to simple robbery followed by a joint submission for 30 months in prison in addition to pre-trial custody. That is what unfolded on May 14. The trial judge accepted the joint submission and imposed that sentence.

[12] The appellant says he received assistance of counsel that was ineffective in three ways.

[13] Two are simply disposed of. The appellant says that counsel failed to advocate for a return to the original offer once it was revoked. In our view, given the facts, and the four-year minimum sentence required for the offence charged, it is hard to see that advocating return to the withdrawn offer had any prospect of success. Counsel cannot be criticized for not doing so, but rather moving forward to negotiate down from the Crown’s revised position.

[14] The appellant also criticizes counsel for failing to argue for a reduced sentence because of the inadequate medical treatment received by the appellant in custody. We do not agree. Having successfully negotiated the Crown down to the joint submission, counsel could hardly have advocated a further reduction on this basis.

[15] The appellant’s main complaint is that counsel failed to follow his instructions to immediately accept the Crown’s original offer and only then apply for bail. To succeed in this argument, the appellant first must establish these facts on a balance of probabilities.

[16] In our view, the appellant cannot do so on this record. The appellant says he gave those instructions. Counsel is equally clear that he did not, but insisted on bail being sought as a very first step.

[17] In our view, counsel’s version is strongly supported by the appellant’s acknowledgement that because of his condition, he was suffering severe physical pain and horrendous emotional stress together with withdrawal symptoms from the drugs to which he was addicted. In light of this, his firm preoccupation with obtaining his release before anything else is entirely understandable. We therefore find counsel’s evidence more credible.

[18] As a result, we need not deal with the legal issues raised in Ms. Davies’ able argument, which depend on a finding that counsel failed to follow instructions in not immediately accepting the Crown’s first offer.

[19] The appeal must be dismissed.

Released: November 5, 2012 (“S.T.G.”)

“S.T. Goudge J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”