COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kormendy, 2021 ONCA 725

DATE: 20211015

DOCKET: C64638

Rouleau, Benotto and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth James Kormendy

Appellant

Kenneth James Kormendy, acting in person

Jessica Smith Joy, for the respondent

Heard: in writing

On appeal from the conviction entered on November 21, 2016 by Justice Christopher Bondy of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of five counts of attempted murder and arson. He was sentenced after trial to 11 years’ incarceration. The Crown appealed the sentence and this court increased it to 20 years less credit for pre-sentence custody.

[2] He appeals his conviction alleging ineffective assistance of his trial counsel.[^1]

FACTS IN BRIEF

[3] The Crown alleged at trial that the appellant attempted to kill his girlfriend and her two daughters, then aged one and seven, by setting fire to her house while they were inside. The appellant testified that he did not set the fire. Instead, he implied that his girlfriend must have started the fire because he was breaking up with her. The trial judge rejected his evidence and found the Crown’s case “overwhelming”.

[4] The appellant’s claim of ineffective assistance of counsel focuses primarily on trial counsel’s decision to admit the voluntariness of his police statement. The appellant says his statement was not voluntary because he was intoxicated, overtired, and upset because of the fire. He also did not review the statement before he testified at trial, the result of which was that his testimony was inconsistent with what he said to the police. The inconsistencies, he submits, related to key issues including who started the fire, the motive for the fire and how he sustained an injury to his hand.

[5] Crown counsel took the position that the statement would not be led as part of its case. However, in the week before trial, he approached defence counsel for a position on the use of the statement for cross-examination. Trial counsel was well familiar with the law on voluntariness and concluded that the appellant was cautioned, had the opportunity to speak to counsel several times in advance of the police interview and was treated respectfully. Throughout the police interview the appellant was responsive to detailed questions asked. The appellant did not tell his counsel that he was intoxicated and in fact had denied that he was intoxicated. Trial counsel discussed the statement with the appellant, who – according to trial counsel – did not want to view it.

ANALYSIS

[6] The analysis of ineffective assistance of counsel proceeds on a strong presumption that the counsel’s conduct fell within the wide range of reasonable professional assistance. The purpose of the inquiry is not to grade trial counsel’s performance, but to determine whether a miscarriage of justice occurred: see R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 85 O.A.C. 186 (C.A.) at para. 74, leave to appeal refused, [1996] S.C.C.A. No. 347.

[7] To determine whether a miscarriage of justice has occurred, the court considers whether the appellant has established the following:

1. the facts material to his claim on a balance of probabilities;

2. that trial counsel’s representation (or performance) was incompetent;

3. that a miscarriage of justice occurred due to the incompetent representation (the prejudice aspect of the claim).

[8] If there is a factual basis for the claim, the court first considers whether a miscarriage of justice occurred. If there is no miscarriage of justice, it is unnecessary to proceed with the performance component of the claim: see Joanisse,at paras. 71-73; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 51-59.

[9] The appellant has not established on a balance of probabilities that there is a factual basis for his claim that his counsel refused to show him the video statement or tell him that it would be used in cross-examination.

[10] In any event, even if the factual component had been met, the appellant fails on the prejudice component. While the trial judge did assess the appellant’s inconsistent statements in his analysis, he also provided detailed and extensive reasons for otherwise rejecting the appellant’s testimony, in particular:

1. The trial judge rejected his evidence about the events leading up to the fire as contrary to the text messages the appellant had sent.

2. The trial judge found the text messages between the appellant and his girlfriend corroborated her characterization of their relationship, not his.

3. The trial judge rejected the appellant’s evidence about how the fire started because it was inconsistent with the evidence of the expert witness, who concluded that the bedroom door was closed when the fire started. The appellant testified that the bedroom door was open. The trial judge believed the expert witness and did not believe the appellant.

4. The trial judge did not accept the appellant’s explanation for the injury to his hand. The appellant said that he burned his hand while attempting to open the child’s bedroom door once the fire had engulfed it. The trial judge found that this evidence did not make sense considering the appellant’s testimony that he was unsure if there was anyone in the bedroom. Further, if the door was open as the appellant maintained, it would have been unnecessary to touch the doorknob to open the door. Finally, the appellant’s injuries were consistent with the expert testimony on expected injuries from igniting gasoline vapours by hand.

5. The appellant testified that he did not call into the child’s bedroom once the fire started as he was unsure if anyone was in the bedroom. The trial judge found that this evidence lacked harmony with the appellant’s own earlier testimony that he was aware that the child was in the bedroom and that he had not observed anyone leaving the bedroom.

6. The appellant’s version of events leading to him bringing the child from the house was disbelieved by the trial judge as the appellant’s version was inconsistent with that of independent witnesses.

7. The appellant denied seeing a gasoline container outside of the child’s bedroom door after the fire started. The trial judge found that this evidence was irreconcilable with the evidence given by the three witnesses who entered the house to try to find the child, each one of whom saw the gasoline cannister.

8. The police officer who arrested the appellant testified that he noted the strong smell of gasoline on the appellant at the time of his arrest. The appellant testified that he smelled like gasoline because he had been working on the lawnmower the day before. The trial judge gave extensive reasons as to why he disbelieved the appellant’s evidence on this point.

[11] As a result of this analysis by the trial judge, it is clear that the inconsistencies in the appellant’s testimony with respect to the video statement would not have changed the result at trial.

[12] In any event, we see no basis to conclude that counsel’s performance failed to meet the high threshold for incompetence. The video statement differed only slightly with the appellant’s testimony at trial. Counsel understood the test for voluntariness and the decision not to contest the Crown’s ability to use the video statement was reasonable in the circumstances.

[13] The appellant raises additional complaints about trial counsel’s assistance. For example, the appellant raises the following points:

1. He complains that counsel did not properly use text messages to confirm the evidence of the witness Ms. Kormendi. However, her evidence was largely accepted by the trial judge who gave it little weight.

2. He claims that counsel should have called an expert to opine that the injury to his hand was inconsistent with having started the fire. However, the Crown’s expert agreed that the injury was consistent with both having started the fire and with the appellant’s testimony.

3. He claims that counsel failed to prepare him to testify at trial while evidence supports that the appellant and counsel met several times, and that counsel was reasonably diligent.

4. He claims that his mother should have been called as a witness, but counsel made a strategic decision that it would not be wise to call his mother as her evidence would be limited and her demeanor likely would not have helped the appellant’s case.

[14] These complaints find no support in the record and do not satisfy the factual component of the test for ineffective assistance.

[15] For these reasons, the appeal is dismissed.

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”

“B. Zarnett J.A.”

[^1]: The appellant indicated that he was assisted in the preparation of his factum on appeal by Mark C. Halfyard as duty counsel.