Court of Appeal for Ontario

Date: 2019-03-14 Docket: C65756

Judges: Simmons, Tulloch and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Kristoffer Jonah Appellant

Counsel

Robin Parker, for the appellant

Erica Whitford, for the respondent

Heard: March 11, 2019

On appeal from the conviction entered on April 25, 2013 by Justice D.A. Harris of the Ontario Court of Justice.

Reasons for Decision

[1] At the conclusion of the oral hearing, we dismissed this appeal for reasons to follow. These are our reasons.

[2] On April 25, 2013, the trial judge convicted the appellant of arson in relation to a fire that occurred at his home on April 5, 2011.

[3] The appellant appeals from his conviction and asserts that a miscarriage of justice occurred due to the ineffective assistance of his trial counsel.

[4] In oral argument, the appellant advanced two main arguments in support of this ground of appeal and abandoned the third argument set out in his factum.

[5] The appellant's first argument is that his trial counsel failed to properly cross-examine his former fiancé, L.R., the only alternative suspect who could have set the fire.

[6] Concerning this issue, the appellant has not established a reasonable probability that a different cross-examination strategy would have resulted in a not guilty verdict. Although the trial judge noted in his reasons that L.R. was not challenged in cross-examination on several aspects of her evidence, he also concluded that the defence theory that L.R. might have started the fire was implausible. In his view, it was simply not realistic that L.R. could have accomplished all that was necessary for her to have started the fire within the window of time available - and to have done so without sustaining any visible injuries, without waking the appellant (who claimed he was sleeping in the master bedroom where the fire occurred) - and to have driven off without being seen by anyone. The appellant has not demonstrated any palpable and overriding error in the trial judge's conclusion. Nor has he presented as part of his fresh evidence application any evidence to undermine the trial judge's conclusion. In the circumstances, we conclude it is not reasonably probable that any failure to cross-examine L.R. concerning, in particular, any potential motives she might have had for starting the fire, and any failure to challenge L.R. about whether she had started the fire or sent a particular text message (matters which she had denied in examination in-chief), would have affected the verdict.

[7] The appellant's second argument is that trial counsel overrode his desire to testify and improperly failed to call other defence evidence.

[8] We reject this argument. Prior to the date on which the defence case was to be presented, the appellant acknowledged in writing that he had discussed the advantages and disadvantages of testifying with trial counsel, knew that his trial was his one opportunity to give his version of the events, and was content not to give evidence because he was satisfied that his statement to the police, which the Crown had presented at trial, set out his version of the events.

[9] In the face of this acknowledgement, and in the absence of any evidence demonstrating the extent or impact of any mental health issues the appellant claims he may have been suffering as of the time of signing the acknowledgement, we are not satisfied that the appellant has established that he was not able to make an informed decision about whether to testify. As was the case in R. v. Archer, 202 C.C.C. (3d) 60, the direction was signed during the trial and sets out in clear language the appellant's decision not to give evidence and the basis for the decision.

[10] We note as well that even though the appellant discharged trial counsel following his conviction because he could no longer afford trial counsel's services, he later requested, and trial counsel agreed to represent him on sentencing. This factor, as well, belies the appellant's post-conviction claims that counsel overrode his desire to testify.

[11] Similarly, the appellant has not led any evidence that demonstrates a reasonable probability that the evidence of others would have affected the verdict. His mother's evidence of a telephone call with her son the evening before the fire did not rebut L.R.'s evidence of conflict that evening; nor did it assist with the issue whether the appellant had texted L.R. on the morning of the fire.

[12] We conclude that the appellant has failed to establish the prejudice component of the test for ineffective assistance of counsel. In these circumstances, it is neither necessary nor desirable that we address the performance component: R. v. G.D.B., 2000 SCC 22.

[13] The appeal is therefore dismissed.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.