ONTARIO COURT OF JUSTICE DATE: 2022·03·04 NEWMARKET

BETWEEN:

ORLANDO TASSONE Appellant

— AND —

HER MAJESTY THE QUEEN Respondent

PROVINCIAL OFFENCE APPEAL

Evidence and Submissions Heard: March 4, 2022 Delivered: March 4, 2022

Counsel: Mr. David Levy .............................................................................. counsel for the Respondent Mr. Vartan Manoukian ......................................................... Paralegal Agent for the Appellant

KENKEL J.:

Introduction

[1] On January 23, 2020, the appellant was convicted at trial of driving a motor vehicle on a highway while performing a stunt contrary to s 172(1) of the Highway Traffic Act RSO 1990 c H.8 and using improper tires contrary to s 70(3) of the same Act.

[2] The appellant alleges that he did not receive the effective assistance of his licensed paralegal at trial. In particular, he alleges that his paralegal prevented him from testifying despite his express instructions to the contrary. The appellant requests a new trial. In the alternative, the appellant requests a sentence reduction.

[3] In addition to the transcripts of the trial and sentencing, fresh evidence was tendered on consent consisting of the appellant’s affidavit, the paralegal Mr. Salomon’s affidavit, and viva voce evidence from both affiants. The Appellant’s current paralegal called Mr. Tassone, who was asked a few questions beyond his affidavit before he was cross-examined. In a similar manner the Crown called the trial paralegal Mr. Salomon and asked him some brief questions before he was cross-examined by Mr. Manoukian.

The Trial

[4] The trial commenced on January 16, 2020. The prosecution closed their case that day. On January 23, 2020 the defence brought an application for non-suit on a point which was clarified by resort to the digital audio record. The defence and prosecution also determined that one of the counts had been stayed in a previous proceeding and was no longer before the court. The defence elected not to call evidence.

[5] Constable Goodall testified that he was operating an unmarked police vehicle with full lights and siren, travelling southbound on Pine Valley Drive. The officer was in the “fast lane” on the left side. The officer heard the sound of a very loud engine exhaust coming from an apparently modified vehicle. There was dust and smoke coming out of the back of the vehicle. The officer activated the onboard radar and it registered a speed of 128km in a 60km zone. The vehicle passed by the officer in the lane closest to him. He testified that it was the only vehicle in the beam of the radar at that time.

[6] The vehicle was a red pickup truck with a large silver, highly polished “super charger” mounted to the top of the engine through the hood. The officer turned around and followed the truck. It drove over a hill and was out of sight for 10 seconds, but as the officer came over the hill he saw the same truck stopping in the same lane at a red light ahead. The officer caused the red truck to pull over. Among the distinctive features of the modified truck, he observed that the rear tires were not standard tires but were racing tires which were very wide and had little to no tread. Photographs were taken of the tires and the vehicle. The officer’s qualifications to operate the radar device and the specific circumstances that led him to conclude that the device was only measuring the speed of the red truck were reviewed in detail in examination-in-chief.

[7] Mr. Salomon had obtained further disclosure prior to the Jan 2020 trial. He obtained an adjournment of an earlier trial date on December 12, 2019 for late-arriving disclosure.

[8] Armed with several items of further disclosure not obtained at the first trial conducted with another agent, (which ultimately resulted in an order for a new trial on appeal) Mr. Salomon conducted a thorough cross-examination of the investigating officer. The cross-examination is set out at pages 24 to 61 of the trial transcript. It covered numerous issues including:

• The general operation of the radar device
• The operation of the device that day
• How the officer determined that the device was functioning and in working order on that shift
• Whether the vehicle targeted by the radar could have been another vehicle
• The identification of the targeted vehicle given a number of factors including the smoke and dust coming from the exhaust, the vehicle speed, the time of observation before losing sight of the vehicle and the presence of another vehicle travelling in the same direction.
• The nature of the tires and modifications to Mr. Tassone’s truck.

[9] The prosecution closed their case on January 16th. The trial resumed on January 23rd, 2020. At that time Mr. Salomon advised the court that the defence was not calling evidence.

[10] Mr. Salomon’s submissions challenged whether the Crown had proved the charges alleged by referring to the trial evidence regarding the officer’s recollection, the fact that the officer was on his way to another call when these events happened, the operation and targeting of the radar, the brief nature of his observations of the targeted vehicle and the circumstances of those observations, the presence of another vehicle travelling in the same direction, the gap where the officer lost direct sight of the targeted vehicle.

[11] Justice of the Peace Turtle explained why he accepted the evidence of the officer as to the speed of the targeted vehicle. With respect to the identification of the targeted vehicle as Mr. Tassone’s red truck, the court found that the officer’s close, direct observation combined with the highly distinctive nature of the heavily modified truck proved it was the same vehicle. “Your vehicle is a great looking vehicle, but it’s easy to spot ..” The unsafe and illegal nature of the tires was proved in the evidence of the officer and the photographs of the truck and tires tendered in evidence at trial.

Ineffective Assistance

[12] In R v RS, 2022 ONCA 58 the Court of Appeal recently summarized the law in this area. I find that guidance of assistance in this case with consideration for the different context – a review of the conduct of a Highway Traffic Act trial by a licensed paralegal.

[13] A person who is represented by a licensed paralegal is entitled to receive the effective assistance of that agent. While the Charter right to counsel does not apply, common law principles of trial fairness remain. To prove an allegation of ineffective assistance, the appellant must show that the trial agent’s assistance was so ineffective that the appellant’s conviction is the product of a miscarriage of justice – R v RS at para 41. A miscarriage of justice may result from ineffective assistance rendering the trial unfair (the procedural fairness branch) or rendering the verdict unreliable (the unreliable verdict branch) – R v RS at para 41.

[14] Appellants alleging ineffective assistance must establish three things:

• They must prove the facts upon which the allegation is based on the balance of probabilities.
• Second, they must demonstrate that the paralegal’s acts or omissions amounted to incompetence.
• Third, they must show that trial counsel’s ineffective performance led to prejudice in the form of a miscarriage of justice. R v RS at para 42.

[15] The standard against which a paralegal’s conduct is measured on appeal is reasonableness. “The carriage of a defence at trial involves innumerable decisions that no two lawyers will navigate in the same way. In light of the wide range of options open to counsel, reviewing courts presume trial counsel to have acted competently and review counsel's assistance deferentially without the distortion of hindsight”. R v RS at para 43.

[16] This appeal involves an allegation that the accused wanted to testify at trial but was prevented from doing so by his paralegal. A person is denied the right to testify when the paralegal actually makes the decision or provides no advice or advice so insufficient that the person cannot make a meaningful decision about testifying. In those situations, the denial of the right of an accused person to make a fundamentally important decision about the conduct of their defence results in an unfair trial and ineffective assistance – R v KKM, 2020 ONCA 736 at para 91.

Analysis

[17] Given the passage of time since the 2016 incident and the events that followed, it’s understandable that Mr. Tassone didn’t recall all of the details of his interaction with Mr. Salomon. More troubling though is his lack of recollection on important points such as whether he reviewed the disclosure with Mr. Salomon. His initial evidence that he didn’t review the disclosure and was “not exactly” aware of the case against him was contradicted by his admission in cross-examination that he’d been through a first trial and heard the evidence, and by the evidence that showed that he had the disclosure in his possession prior to retaining Mr. Salomon. He testified that he met Mr. Salomon the “day of trial” but then when asked about the sequence said “It was so far back I’m having trouble remembering”. Mr. Tassone repeated several times that he doesn’t now remember many of the details regarding the central events in question. In the context of all of the evidence, I find his testimony is not reliable given his present lack of memory.

[18] Mr. Salomon also couldn’t recall exact dates and times of texts and phone messages, but his evidence was more detailed regarding his trial preparation which included a review of the disclosure and discussion of the issues, a mock cross-examination and a meeting with a potential witness (a passenger). I accept Mr. Salomn’s evidence regarding the trial preparation.

[19] What both parties agree upon is that Mr. Salomon made it plain prior to the January 16th trial date that he would not call Mr. Tassone as a witness at trial. While he acknowledged that the ultimate decision whether or not to testify lies with the client, he stated that in this case he could not call Mr. Tassone for both tactical and ethical reasons which were explained in his evidence.

[20] At that point Mr. Tassone had a choice. He could either discharge Mr. Salomon and proceed with another paralegal on new instructions, or he could proceed with Mr. Salomon knowing the defence would be focused on issues of radar operation and targeting and on identification. He chose the latter knowing that he would not be testifying.

[21] A month after his conviction, with a new paralegal Mr. Manoukian, Mr. Tassone signed and filed a Notice of Appeal. The only ground of appeal mentioned in that notice is the identification of the speeding vehicle, the same issue at trial. There was no complaint regarding ineffective assistance. Mr. Manoukian in submissions noted the timing of the Notice prior to expiry of the appeal period. He gave some evidence regarding late retainer and not every issue being included. I accept that he was not involved prior to that point, but it’s not the case that he was given no information about Mr. Tassone’s complaint or the possible issues on appeal. His instructions referred only to the identification issue as raised at trial which is consistent with Mr. Salomon’s evidence that no complaint was made to him at the time of the trial or afterwards despite the verdict.

[22] Considering all of the evidence including the trial transcripts and affidavits, I find that the appellant has failed to prove on the balance of probabilities the facts upon which the allegation of ineffective assistance is based. There is no credible or reliable evidence of omissions or incompetence that could have led to a miscarriage of justice. On the contrary, Mr. Salomon was prepared for trial, and he tested every aspect of the prosecution’s case, identifying several important issues for final submissions.

Sentence Appeal

[23] The appellant requests that the Stunt Driving fine be lowered to the minimum given the accused’s circumstances. There’s no evidence on that point, but I accept his paralegal’s submissions. While I have sympathy for his present health difficulties, the trial court imposed a sentence of $3500, closer to the minimum of $2000 than the maximum $10,000, despite the extreme speed, the driving abstract and record, and the other aggravating circumstances. The court did not err in that regard nor are the present circumstances sufficient to require that an otherwise fit sentence be set aside. I agree with both counsel that the time to pay should be extended to two years.

Conclusion

[24] The conviction appeal and the sentence appeal are dismissed.

Delivered: March 4, 2022. Justice Joseph F. Kenkel