Ontario Superior Court of Justice
Court File No.: SCA 199/09
Date: 2012-02-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – BILL LAM Appellant
Debra Moskovitz, for the Crown/Respondent
Peter Lindsay, for the Appellant
Heard: February 16, 2012
KELLY J.
REASONS FOR DECISION
[1] The Appellant was charged with impaired operation of a motor vehicle and “over 80”. Following the trial, Fairgrieve J. convicted the Appellant of drive over 80.
[2] The sole issue on this appeal is the ineffective assistance of Counsel at trial. The Appellant submits that:
a. Trial Counsel misunderstood the Court of Appeal decision of R. v. Huff [1] that resulted in a failure to raise a “Carter” defence.
b. The Appellant submits that because he had a potential “Carter” defence, there was a “reasonable possibility” that the result of his trial “could” have been different.
[3] The Crown submits that the Appellant does not have a viable “Carter” defence and therefore there is no reasonable possibility that the result of the trial could have been different. I disagree. What follows are my reasons.
The Applicable Test
[4] To be successful in an appeal of this nature, the threshold for establishing a claim of ineffective assistance of counsel is high. The Appellant must establish the following in order to succeed:
a. The material facts upon which the incompetence claim is based;
b. That the assistance provided by counsel was ineffective (the “performance component”); and
c. That the ineffective assistance of counsel resulted in a miscarriage of justice (the “prejudice component”). [2]
[5] I will now deal with each of these components in assessing whether there was ineffective assistance of Counsel in this case.
Principle #1: The material facts upon which the incompetence claim is based
[6] The material facts upon which the incompetence claim is based may be summarized as follows:
a. On September 8, 2008, the Appellant was stopped by the police while driving.
b. The Appellant was asked if he had had anything to drink that night. He said that he had consumed a few beers.
c. The Appellant was arrested and taken to the police station where he participated in two breath tests. The results of both tests were 110 milligrams of alcohol per 100 millilitres of blood.
d. The Appellant retained Counsel thereafter. He advised Counsel that he had consumed 2 glasses of sake as opposed to a few beers that he told the police. Because of this discrepancy, Counsel did not pursue a “Carter” defence. [3]
[7] It is my view that the material facts upon which the incompetence claim is based are established.
Principle #2: That the assistance provided by counsel was ineffective
[8] Counsel candidly admitted that he believed that the Appellant’s statement to the police at the roadside (about the consumption of beer) was admissible into evidence. He concluded that the credibility of the Appellant would be negatively affected if he testified that he had consumed sake as opposed to beer.
[9] In cross examination in advance of this appeal, Counsel admitted that he was mistaken about the admissibility of the roadside statements. This issue was addressed by our Court of Appeal in the case of R. v. Huff. The Court of Appeal ruled that roadside statements prior to arrest were not admissible to assess the credibility of an accused in his evidence at trial.
[10] Trial Counsel operated under the erroneous assumption that the statements at the roadside would have been admissible to undermine his client’s credibility. Accordingly, he failed to:
• obtain information about alcohol consumption (i.e. exact amount, type, etc.) from the Appellant in an effort to advance a Carter defence at trial;
• discuss the possibility of the Appellant testifying at trial;
• order disclosure to determine if the intoxilyzer had been malfunctioning or operated improperly at the time of the tests which is required to raise this defence;
• order disclosure to determine whether the intoxilyzer had been maintained;
• retain an expert for trial such as Mr. Moftah who is a toxicologist. Mr. Moftah would have testified that the intoxilyzer in question was not given the recommended annual maintenance for over a year prior to the tests on the Appellant resulting in “improper operation” that would have compromised the breath results; and
• retain an expert toxicologist to show that the Appellant’s blood alcohol concentration at the time of driving was under 80 milligrams of alcohol per 100 millilitres of blood based on the alcohol consumed.
[11] In my view, such an error in his interpretation of Huff informed Counsel’s decisions for the Appellant’s defence. Based on the information provided by the Appellant (that he had two glasses of sake), the Appellant would have had a viable Carter defence. It was not pursued which provides evidence that there was ineffective assistance of Counsel.
Principle #3: That the ineffective assistance of Counsel resulted in a miscarriage of justice
[12] The Appellant is required to show that Counsel’s ineffective representation caused a miscarriage of justice. This occurs if the appellate court is satisfied that the appearance of the fairness of the trial or the reliability of the verdict is undermined by the ineffective assistance of counsel. A verdict will be rendered unreliable where the Appellant is able to demonstrate that had Counsel performed in a competent manner, there is a reasonable possibility that the verdict could have been different.
a. The Reliability of the Verdict
[13] While I appreciate that the reliance of Counsel on consumption patterns and expert calculations to challenge the breath readings have been significantly restricted by the amendments to the Criminal Code on July 2, 2008, I do believe that the defence is one that was open to the Appellant on the materials provided on this appeal.
[14] The amendments to s. 258 require an accused person to adduce evidence that:
a. The approved instrument was malfunctioning or was operated improperly;
b. The malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 ml of blood; and
c. The concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed.
[15] There is conflicting evidence that could be before the court with respect to whether the intoxilyzer was malfunctioning or was operating improperly.
[16] Mr. Moftah, an expert toxicologist, provided an affidavit in support of this appeal. His evidence, after having reviewed the disclosure by the Crown, would be that the intoxilyzer in issue was not given the recommended annual maintenance for over one year prior to the breath tests being administered on the Appellant. It is his view that those circumstances would result in “improper operation” and would have compromised the reliability of the results.
[17] The Crown expert toxicologist, Dr. Darryl Mayers, takes the position that the intoxilyzer was in proper working order. While he does not agree with the opinion of Mr. Moftah that the intoxilyzer was not maintained as required and could result in improper operation, he concedes that there are a number of qualified toxicologists who share Mr. Moftah’s view. That is, the maintenance records for the intoxilyzer should be reviewed to determine if it might have malfunctioned or it was operated improperly.
[18] Lastly, there was evidence presented during this appeal from an expert toxicologist that the Appellant’s blood alcohol concentration at the time of driving was between 16 and 50 milligrams of alcohol per 100 millilitres of blood.
[19] In my view, there is evidence which, if believed, could possibly rebut the presumption in s. 258(1)(c) of the Criminal Code. As such, there is a reasonable possibility that the verdict could have been different but for the ineffective assistance of Counsel.
b. Is the appearance of fairness undermined?
[20] In light of the admissions made by trial Counsel (that he was misinformed about the effect of Huff and therefore did not pursue a “Carter” defence) I am satisfied that a reasonable person looking at this case would find that the appearance of fairness of the trial was undermined and the verdict is unreliable. As Counsel for the Appellant submitted: The Appellant, at the very least, should be entitled to advance such a defence, despite the capable submissions of Counsel as to why it would not succeed.
Conclusion
[21] It is my view that this is not a case of the Appellant blaming his Counsel for the conviction. Counsel has essentially admitted that he was ineffective in his assistance to defend the Appellant due to his interpretation of Huff and his failure to advance a potentially viable defence.
[22] For the abovementioned reasons, the appeal is allowed. The conviction is quashed and a new trial is ordered.
Kelly J.
Released: February 23, 2012
COURT FILE NO.: SCA 199/09
DATE: 20120223
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Appellant – and – BILL LAM Respondent
REASONS FOR DECISION Kelly J.
Released: February 23, 2012
[^1]: [2000] O.J. No. 3487
[^2]: See: R. v. Archer, 2005 36444 (ON CA), [2005] O.J. No. 4348 (C.A.) at para. 119-121 and R. v. Joanisse, 1995 3507 (ON CA), [1995] O.J. No. 2883 (C.A.) at para. 63-81.
[^3]: Section 258(1) (c) of the Criminal Code provides that breath test results are conclusive proof of an accused’s blood alcohol concentration at the time of driving in the absence of a “Carter” defence. A Carter defence is one where an accused is able to provide evidence tending to show consumption leading to an actual blood alcohol concentration being below 80 mgs of alcohol per 100 mls of blood together with evidence tending to show improper operation or malfunctioning of the intoxilyzer which led to the breath test results being above 80 mgs of alcohol per 100 mls of blood.