Court of Appeal for Ontario

Date: 2019-06-11 Docket: C62458

Judges: Watt, Lauwers and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Aldo Simoni Applicant/Appellant

Counsel

J. Randall Barrs, for the appellant

Christine Tier, for the respondent

Heard: May 21, 2019

Appeal Information

On appeal from the conviction entered on February 3, 2016 and the sentence imposed on June 7, 2016 by Justice Dale F. Fitzpatrick of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] The appellant, Aldo Simoni, and four co-defendants were charged as a result of the vault-breaking of a bank in Burlington. At trial, the appellant testified that he participated in the vault breaking under duress. He was convicted. After conviction, his trial counsel intended to bring a Carosella application for a stay of proceedings on the basis of lost evidence. However, such an application could not be brought because the trial judge was functus officio.

[2] The appellant submits that he was deprived of effective assistance of counsel. He also submits that the trial judge erred in failing to provide a final caution to the jury on how they could consider the lost evidence. In addition, the appellant seeks leave to appeal against his sentence of two and a half years' imprisonment.

[3] For the reasons that follow, we dismiss the conviction appeal. We grant leave to appeal sentence, but dismiss that appeal.

The Break-in

[4] On March 18, 2013, the police arrested the appellant along with four other individuals and charged them with two counts of breaking and entering. The five individuals were alleged to have orchestrated an elaborate bank theft by breaking into a vacant office space above a TD Bank, drilling a hole into the concrete floor of the office, and gaining access to the bank's vault. Once inside the vault, the robbers used hammers and pry bars to open safety deposit boxes and take the contents.

[5] A brick of bait money in the vault stolen by the robbers contained a GPS tracking device. The police and tracker dogs followed the path of the GPS into a field. There, the appellant and one of his confederates, Mr. Vishaj, were discovered lying on the ground; the other robbers were found shortly thereafter.

[6] The robbers had an escape plan. Down the street from the bank, there was a locked parking lot backing onto railway tracks. In the lot, a car was found rented in the appellant's name.

[7] When he was arrested, the police allegedly seized from the appellant a key to the office above the bank and a cell phone that had been used to call the phones of his co-defendants. At the police station, the appellant signed a property report that listed the key and cell phone. Nevertheless, the appellant later denied that those items were in his possession.

Ineffective Assistance

[8] The allegation of ineffective assistance of counsel relates to the appellant's duress defence at trial. The essence of that defence was that Mr. Vishaj forced him to drill the hole into the bank vault at gunpoint. The appellant complied because he feared for his own life and the lives of his family members. It was also the appellant's evidence that his family and Mr. Vishaj's family were engaged in a long-standing "blood feud" in Albania.

[9] The appellant deposed that he told his lawyer about the defence and the fact that the key and cell phone did not belong to him prior to the preliminary inquiry in June 2014.

[10] Trial counsel deposed that he remembered first being made aware of the duress defence shortly before the trial in January 2016. Before that, he did not have an affirmative defence for the appellant's case, beyond relying on the absence of direct evidence and the exculpatory evidence of the co-defendants. When the appellant disclosed the information about Mr. Vishaj, trial counsel believed he had the ability to advance a duress defence. Trial counsel then realized he had not requested the police booking video and that it had not been disclosed to him. The video might have shed light on what was or was not in the appellant's possession, which was relevant to the duress defence.

[11] According to the trial counsel, he requested the booking video on January 5, 2016. On January 7, the officer in charge informed trial counsel that the video had been destroyed due to an equipment malfunction that deleted all data in February 2014. The officer also indicated that it was the Division's practice to delete booking videos after a 30-month retention period. Trial counsel's request came at month 34.

[12] Trial counsel further stated that he made a strategic decision to use the lost booking video evidence to further his argument about the existence of a reasonable doubt in the appellant's guilt by highlighting the lack of evidence. He stated that he considered bringing a Carosella application at the end of evidence but chose not to do so. Trial counsel did not realize he could seek a jury instruction as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms.

[13] At trial, a discussion took place in the absence of the jury about what they should be told about the missing booking video. The defence wanted to tell the jury that the video had been destroyed by the state, but the Crown's position was that the state could only be blamed for the missing evidence as a remedy for a s. 7 Charter violation. The trial judge gave the following mid-trial instruction:

A request for the booking video was made before trial. No one is suggesting this was deliberate, but the video was never produced for reasons that are not material to you.

[14] Trial counsel felt the instruction was insufficient but did not request a further instruction in the final charge to the jury. He believed the best course of action was to highlight the evidentiary gap, rather than to bring a Carosella application at the close of his case. Only after he provided notice and filed his factum did he realize that he could not bring a Carosella application post-verdict.

Analysis

[15] In order to succeed on a claim of ineffective assistance of counsel at trial, an appellant must establish: (i) the facts on which the claim of incompetence is based; (ii) that the representation provided by trial counsel was incompetent (the performance component of the test); and (iii) that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test): R. v. B. (M.), 2009 ONCA 524, 68 C.R. (6th) 55, at para. 8.

[16] We are of the view that the appellant has failed to establish the prejudice branch of the ineffective assistance test. A Carosella application would have had no chance of success in the circumstances of this case. The appellant had no credible explanation for the delay in seeking the video evidence. In addition, there was an innocent explanation for the loss of the evidence that would not qualify as unacceptable negligence. Therefore, even if a Carosella application had been brought, it would not have succeeded.

[17] We note as well that even if a breach of s. 7 had been established, a stay of proceedings would have been a remedy of last resort: R. v. La, [1997] 2 SCR 680, at para. 23; R. v. Bero, 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 55. The more likely remedy would have been a corrective instruction to the jury. As will be discussed below, the mid-trial charge provided by the trial judge was actually more beneficial to the appellant than the standard charge. Thus, prejudice has not been established.

Jury Charge

[18] There is also no merit in the submission that the trial judge erred in not providing the model lost evidence instruction in his final charge.

[19] Such an instruction, which was not asked for by trial counsel, permits the jury to draw an inference that the missing evidence may not have assisted the Crown in circumstances where the defence acted diligently and the Crown explanation is inadequate. If the trial judge had used the model instruction and told the jury about the Crown's failure to preserve the evidence, he would have had to balance that by telling the jury that the defence had failed to act diligently in requesting the evidence, a fact that would have undercut the duress defence.

[20] The mid-trial instruction that the trial judge did provide was more advantageous to the defence. It raised the fact that the defence had been deprived of evidence, but did not discuss the appellant's lack of diligence in seeking that evidence.

Sentence Appeal

[21] Two arguments are advanced on the sentence appeal. The first is an allegation that the trial judge violated the parity principle because he sentenced the appellant to the same term of incarceration as Mr. Papic, despite the fact that Mr. Papic had a criminal record. This argument ignores the fact that Mr. Papic pleaded guilty, which explains why a sentence identical to the one received by Mr. Papic was imposed on the appellant even though he had no criminal record.

[22] Contrary to the second submission of the appellant, the trial judge was well aware of the fact that the sentence may have had adverse immigration consequences for him. The trial judge correctly found that the sentencing process could not be skewed or dominated in order to avoid those consequences.

[23] In short, the sentence is fit and free from error. There is no basis for appellate interference.

Disposition

[24] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

"David Watt J.A."

"P. Lauwers J.A."

"C.W. Hourigan J.A."