Court of Appeal for Ontario

Date: 2019-10-09 Docket: C64412

Judges: Rouleau, Trotter and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Davidson Usifoh Appellant

Counsel

Appellant: Davidson Usifoh, acting in person

Respondent: Michael Fawcett

Heard: October 1, 2019

On Appeal

On appeal from the conviction entered and the sentence imposed by Justice Howard Borenstein of the Ontario Court of Justice on August 28, 2017.

Appeal Book Endorsement

[1] The appellant was convicted of multiple counts of fraud. He appeals his conviction alleging ineffective assistance of his trial counsel.

[2] Essentially, the appellant alleges that his lawyer failed in his duty by:

i. admitting to facts that he should not have (i.e., that the victims had been defrauded);

ii. by failing to bring relevant evidence to the trial judge's attention;

iii. by failing to prepare the appellant to testify at trial; and

iv. by colluding with the Crown to use the appellant as a witness to prove its case.

[3] We disagree with each of these allegations, as follows:

i. Defence counsel made reasonable concessions, for which he received proper instructions. The appellant signed off on the agreed statement of facts;

ii. The evidence that the appellant says was not brought to the attention of the trial judge was contained in the books of exhibits filed at trial. As defence counsel said in his cross-examination, he could not guarantee that the trial judge actually read everything. However, we have no reason to believe that the trial judge was not diligent;

iii. We accept defence counsel's evidence that he spent sufficient time and effort in preparing the appellant to testify. This included conducting a mock cross-examination. It is true that the trial judge rejected the appellant's evidence. We are not persuaded that this resulted from a lack of preparation; and

iv. The allegation of collusion with the Crown is completely without merit.

[4] In sum, we are unable to conclude that trial counsel's performance fell below what is expected of reasonably competent counsel.

[5] The conviction appeal is dismissed.

[6] The appellant also seeks leave to appeal his fine and compensation orders based on his impecuniosity. All relevant facts were before the trial judge. We see no basis to interfere with the trial judge's exercise of discretion in this regard. The application for leave to appeal is granted, but the appeal against sentence is dismissed.